Blakely v. Review Bd. of Ind. Employment Sec. Division

• Decision Date: 15 February 1950
• Docket Number: No. 17944,17944
• Citation: Blakely v. Review Bd. of Ind. Employment Sec. Division, 90 N.E.2d 353, 120 Ind.App. 257 (Ind. App. 1950)
• Parties: BLAKELY et al. v. REVIEW BOARD OF INDIANA EMPLOYMENT SECURITY DIVISION et al.
• Court: Indiana Appellate Court

Page 353

90 N.E.2d 353

120 Ind.App. 257

BLAKELY et al. v.REVIEW BOARD OF INDIANA EMPLOYMENT SECURITY DIVISION et al.

No. 17944.

Appellate Court of Indiana, in Banc.

Feb. 15, 1950.

Leon M. Despres, Chicago, Ill. (of counsel), Albert W. Ewbank, Indianapolis, for appellants.

J. Emmett McManamon, Atty. Gen., John M. Harrigan, Deputy, Bell, Boyd, Marshall & Lloyd, Chicago, Ill., Baker & Daniels, Indianapolis, David A. Watts, Chicago, Ill. (of counsel), Thomas R. McMillen, Chicago, Ill. (of counsel), for appellee.

ROYSE, Judge.

For brevity and clarity the appellants will hereinafter be referred to as the employees, appelleeReview Board of the Indiana Employment Security Division as the Board, and appelleeW. B. Conkey Company as the employer.

We believe a better understanding of the question presented by this appeal can be had by setting out in full the Statement of Fact and the Findings and Conclusions of the Board:

'Statement of Fact:

'The employer is a member of the Franklin Association of Chicago, an association of persons, firms and corporations engaged in the printing industry in the Chicago industrial area.Collective bargaining agreements in the industry for a number of years have been negotiated on an industry-wide basis by the scale committees of the Franklin Association, and Chicago Typographical UnionNo. 16, I.T.U.-A.F. of L., representing all of their membership, which includes the claimants herein.

'The employer's establishment occupies a one-story building in Hammond, Indiana, employing approximately 1000 persons, and furnishes complete manufacturing facilities in connection with printing from the original manuscript through the bound product.The composing room employees total approximately 57.The majority of them work in a room called the composing room, and the rest work in another room, designated as the lineup room.The employees of the two rooms are interested in the same collective bargaining unit through their membership in the Chicago Typographical UnionNo. 16, I.T.U.-A.F. of L., and their hours of work, rates of pay, and conditions of employment are the subject of a common collective bargaining agreement.The company has a single system of administrative superintendence, accounting and pay roll, and has a general managerial supervision of all production and clerical employees in the plant, including the composing room.

'The most recent contract prior to the period involved herein, was for one year, ending December 31, 1947.In October, 1947, negotiations were started between the scale committees of the Franklin Association and the Union with respect to a renewal agreement to be effective January 1, 1948.Negotiations continued without any agreement being reached to the date of the hearing before the Referee.

'Beginning on or about February 10, 1948, and immediately subsequent to the company's refusal to meet the demands of the local union committee that its workers be given an increase of $14.89 per week, the claimants herein, who were employees in the composing room department, engaged in work slowdown tactics, and that such tactics resulted in a decrease in production to a level of 40% of normal.Thereafter this employer complained to a Union representative concerning the slowdown tactics of the composing room department employees, and immediately subsequent to such complaint production increased to approximately 80% of normal for a day and a half, and thereafter production again returned to its previous level of 40% of normal, or three or four galleys instead of eight or ten galleys.Bacause of the continuance of the slowdown tactics of the claimants herein the employer caused a notice to be posted in the composing room department stating that, 'Effective Monday, March 15, 1948, and until further notice, the composing room will be closed.Notice will be given when work in the composing room is to be resumed.'Such notice was signed, 'W. B. Conkey Company, A. A. MacDiarmid, Secretary.'

'The dollar value of the work performed by the composing room employees was approximately 10% of the dollar value of the aggregate finished product, and 90% of the volume of work performed in this employer's establishment did not go through the composing room, and of the remaining 10% of the total volume 9% of the entire finished product is worked on by the composing room department employees, and 1% of the total is performed wholly within the composing room department.

'From immediately subsequent to March 15, 1948 to the dates of the hearings before the Referee there was almost complete cessation of typesetting in the employer's establishment.However, employees normally engaged in the office or other classifications in the plant performed duties of locking up type for printing, the lining up of sheets, and the making of bases for plates previously performed by composing room employees, when necessary for emergency purposes.All other departments in this employer's establishment were functioning at normal capacity.The evidence further showed that the number of working employees subsequent to March 15, 1948 was reduced only to the extent of the number of employees in the composing room who were affected by the order of March 15, 1948.

'Work performed in the composing room is the type of work commonly done in printing establishments.'

'Findings and Conclusions:

'The Review Board finds that a labor dispute existed between the employer and the claimants herein through their bargaining agent, the International Typographical Union LocalNo. 16 over the terms and conditions of their employment, and that such labor dispute commenced in October, 1947, and continued throughout the period herein in issue.As a result of this dispute, the claimants instituted slowdown tactics to try to force their demands upon the employer, and that the employer locked out the claimats on March 15, 1948, because of such slowdown tactics and that such lockout resulted in the claimants' unemployment after such date.

'The Review Board further finds that the claimants were employed in the employer's composing room; that as a result of such lockout, there was a substantial curtailment of production in the employer's composing room; that the employer's composing room constituted a separate branch of work, commonly carried on as a separate business in separate premises, which was conducted in a separate department of the employer's establishment, and that for the purpose of the Indiana Employment Security Act, it was in accordance with Section 1504 a separate establishment.

'The Review Board, therefore, finds that the unemployment of the claimants from March 15, 1948, to and including May 25, 1948, the last day of the hearing before the Referee, was due to a stoppage of work due to a labor dispute existing at the establishment at which they were last employed and in which they were interested and participating and because of such fact they and each of them are ineligible for their waiting period and benefit rights during any of the calendar weeks involved in the period of March 15, 1948, to and including May 25, 1948.'

There is but one real question in this appeal.It is: Does § 1504, Acts 1947, c. 208, § 52-1539c, Burns'Ind.Stat.1949 Supp. of the Indiana Employment Security Act, under the facts disclosed by the record and the findings of the Board render the employees ineligible for the benefits provided by the above mentioned Act?

The pertinent provisions of this section are as follows: 'An individual shall be ineligible for waiting period or benefit rights: For any week with respect to which the board finds that his total or partial or part-total unemployment is due to a stoppage of work which exists because of a labor dispute at the factory, establishment, or other premises at which he was last employed * * * Provided, That if in any case separate branches of work which are commonly conducted as separate businesses in separate premises, are conducted in separate departments of the same premises, each such department shall, for the purpose of this section, be deemed to be a separate factory, establishment, or other premises.'

The contention of the employees may be summarized as follows: First, That because this act is liberally construed to achieve its beneficent purpose an otherwise qualified unemployed claimant is entitled to its benefits unless he is clearly covered by a disqualifying provision of the Act.Second, That before a claimant becomes ineligible under the above quoted section of the statute there must be a stoppage of work which was caused by a labor dispute.Third, the term 'stoppage of work' means stoppage of work done at the plant, not cessation of work by the employee, and since production continued in this case, there was no stoppage of work.Fourth, That the Findings and Conclusions of the Board that the composing room department of the employer constituted a separate department commonly conducted as a separate business, were wholly unsupported by the evidence and are, therefore, contrary to law.They finally contend that since the Referee found there was no substantial stoppage of work and that the employer's composing room did not constitute a separate factory or establishment, and the employer did not appeal from the Findings of the Referee in the manner prescribed by the statute, they are final and therefore the employer has waived those questions.

We agree with the employees that this Act should be liberally construed to give effect to its beneficent, humane and sound economic policy.However, this liberality does not permit the giving of its benefits to those whom the legislature has positively determined should not have such benefits.Such construction on our part would be judicial legislation which might nullify its purposes.News Publishing Co. v. Verweire, 1943, 113 Ind.App. 451, 49 N.E.2d 161.Our courts have on several occasions defined the objective of this Act.

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