Cameron v. De Board

• Jurisdiction: Oregon
• Parties: David H. CAMERON, as Department of Employment Commissioner of the State of Oregon, et al., Appellants, v. Jessie DE BOARD et al., Respondents. David H. CAMERON, as Department of Employment Commissioner of the State of Oregon, et al., Appellants, v. Donald N. MacINNES et al., Respondents.
• Citation: 230 Or. 411,370 P.2d 709
• Court: Oregon Supreme Court
• Decision Date: 18 April 1962

Page 709

370 P.2d 709

230 Or. 411

David H. CAMERON, as Department of Employment Commissioner of the State of Oregon, et al., Appellants, v. Jessie DE BOARD et al., Respondents.

David H. CAMERON, as Department of Employment Commissioner of the State of Oregon, et al., Appellants, v. Donald N. MacINNES et al., Respondents.

Supreme Court of Oregon, In Banc.

Argued and Submitted Nov. 1, 1961.

Decided April 18, 1962.

Hugh L. Barzee, Portland, and E. Nordyke, Asst. Atty. Gen., Salem, argued the cause for appellants. With them on the brief were Robert Y. Thornton, Atty. Gen., Salem, and Barzee, Leedy & Tassock and Long & Neill, Portland.

Clifford D. O'Brien, Portland, argued the cause for respondents DeBoard and others. With him on the brief were Bailey, Swink & Gates, Portland.

Donald S. Richardson, Portland, argued the cause for respondents MacInnes and others. On the brief were Bailey, Swink & Gates and Green, Richardson, Green & Griswold, Portland.

Before McALLISTER, C. J., and ROSSMAN, WARNER, PERRY, SLOAN, O'CONNELL and GOODWIN, JJ.

GOODWIN, Justice.

This is an appeal by certain employers ¹ from administrative decisions, affirmed in the circuit court, which awarded unemployment compensation to certain workmen who became unemployed as the result of labor disputes during the summer of 1958.

The disputes involved the projects of some 78 employers engaged in the construction industry. There were two strikes, one in May by the laborers, and one in July by the teamsters and operating engineers. The other major unions bargaining for construction workers were the carpenters, piledrivers, iron workers, and cement masons. None of these unions was a party to a strike; nor were the handful of sheetmetal workers and electricians who were employed on certain work which was suspended during the disputes. Virtually all the claimants were members of one of the nonstriking unions mentioned above.

Each of the named unions conducts its own negotiations with the employers on at least a state-wide basis. The region covered in the collective bargaining agreements may also be larger than the State of Oregon, but these consolidated cases concern only unemployment in Oregon. For collective bargaining purposes, the employers in the construction industry have banded together in the Associated General Contractors of America, Inc., commonly referred to as the AGC. As far as the record indicates, all the interested employers had assigned their bargaining rights to one or the other of the two divisions of the AGC, the Heavy and Highway Chapter and the Building Chapter. Each of these chapters has at least state-wide jurisdiction. The parties have made no distinction between the two chapters, nor do we see any reason to do so.

ORS 657.200(1) provides:

'An individual is disqualified for benefits for any week with respect to which the commissioner finds that his unemployment is due to a labor dispute which is in active progress at the factory, establishment or other premises at which he is or was last employed or at which he claims employment rights by union agreement or otherwise.'

Every claimant became unemployed by reason of a labor dispute. There was either a lockout or a strike at the project where each was employed. These strikes and lockouts were part of an industry-wide, state-wide disagreement over the provisions to be included in a collective-bargaining agreement between the AGC and the striking union or unions. Either a strike or a lockout constitutes a labor dispute for purposes of this statute. Henzel v. Cameron, 228 Or. 452, 365 P.2d 498 (1961). Thus all the claimants are disqualified for unemployment benefits by ORS 657.200(1), unless they can show that they are requalified under Subsection (3), which provides:

'This section does not apply if it is shown to the satisfaction of the commissioner that the individual:

'(a) Is not participating in or financing or directly interested in the labor dispute which caused his unemployment; and

'(b) Does not belong to a grade or class of workers of which, immediately before the commencement of the labor dispute, there were members employed at the premises at which the labor dispute occurs, any of whom are participating in or financing or directly interested in the dispute.'

These cases involve the application of Subsection (3) to the individual claims. No member of a striking union has submitted a claim. Members of nonstriking unions made idle by the dispute seek to requalify for unemployment benefits under ORS 657.200(3). Since we are concerned almost exclusively with the two parts of Subsection (3), we shall hereafter refer to them as (3)(a) and (3)(b).

No particular difficulty is presented by the provisions of (3)(a). It is conceded that workmen who were not members of the respective striking unions neither contributed to strike funds nor had a direct interest in the outcome of the strikes. The record will show whether or not a given claimant participated in the labor dispute. Refusal to work behind a picket line constitutes participation within the meaning of ORS 657.200(3)(a). See Baldassaris v. Egan, 135 Conn. 695, 68 A.2d 120 (1949); American Brake Shoe Co. v. Annunzio, 405 Ill. 44, 90 N.E.2d 83 (1950); In re St. Paul & Tacoma Lumber Co., 7 Wash.2d 580, 110 P.2d 877 (1941); cf. Lexes et al. v. Industrial Commission et al., 121 Utah 551, 243 P.2d 964 (1952); and see Annotation, 28 A.L.R.2d 333. The evidence showed that several claimants honored picket lines before they were locked out by the employer. These claimants are therefore disqualified under (3)(a). Claimants who did not have an opportunity to observe picket lines because a lockout occurred before such lines were established are not disqualified under (3)(a), although, as will be seen, a number of them might be disqualified under (3)(b), to which we now turn our attention. This omnibus clause requires the individual claimant to prove that he:

'Does not belong to a grade or class of workers of which, immediately before the commencement of the labor dispute, there were members employed at the premises at which the labor dispute occurs, any of whom are participating in or financing or directly interested in the dispute.' ORS 657.200(3)(b).

The legislature has thus seen fit to disqualify a claimant who did not participate in a given dispute if he falls within a disqualified 'grade or class'. Accordingly, a claim may fail even though the workman has no other connection with a given dispute than his chance membership in whatever turns out to be a 'class' for the purposes of administering the fund. Conflicting views have been expressed concerning the desirability of this vicarious disqualification. ² However, it is not our function to pass upon the wisdom of the law. Rather, we must attempt to discern the legislative intent and give effect thereto. The cases and reviewers suggest several reasons which may have caused the lawmakers to think some such safeguard was necessary to protect compensation funds from abuse.

Collective bargaining strategists, it is suggested, might be encouraged to employ the 'key-man' strike ³ in the absence of such a clause. Bethlehem Steel Co. v. Board, 219 Md. 146, 153-154, 148 A.2d 403, 407-408 (1959), noted in 20 Md.L.Rev. 59 (1960). The 'key-man' technique permits a union to halt production by removing a handful of workmen from an integrated operation. Compensation claims of the other workmen who are not striking are then charged to the employer when lack of work throws the nonstrikers upon the compensation fund. By having to replenish the compensation fund, the employer is forced to finance a strike against himself. Feldman, supra note 2, at 616; Lesser, supra note 2, at 169.

Another possible reason for Subsection (3)(b) might have been the anticipation of administrative difficulties in trying to determine the degree, if any, of concerted action by ostensibly dissociated, but actually interested, parties. Queener v. Magnet Mills, Inc., 179 Tenn. 416, 424, 167 S.W.2d 1, 4 (1942) (quoting English report); Note, 33 Minn.L.Rev. 758, 763 (1949); 20 Md.L.Rev. 59, 62 (1960).

Such a statute may have been deemed necessary to preserve the neutrality of the state in labor disputes. Matter of Ferrara (Catherwood), 10 N.Y.2d 1, 8, 217 N.Y.S.2d 11, 15, 176 N.E.2d 43, 47 (1961). This rationale, however, has been subject to criticism. See Lesser, supra note 2, at 174-177; but see Williams, supra note 2, at 356-358.

Not only is the rationable of the grade and class disqualification uncertain but, in addition, efforts to establish criteria for its application have not been crowned with success. In some cases, the class has been held to be equal to (and limited by) the membership of the striking union. E. g., Queener v. Magnet Mills, Inc., supra. In other cases, the work in which the claimants were engaged was integrated with that of the strikers so that only a fraction of the work force caused the plant or operation to shut down. In these cases the claimants were disqualified as members of a 'class', but the cases involved industrial unions. Thus, the claimants were members of the same union as those who were directly involved in the dispute. Accordingly, such cases may be treated as limiting the 'class' to the membership of a single union, although such a rationale is not clear. E. g., Local No. 658, etc. v. Brown Shoe Co., 403 Ill. 484, 87 N.E.2d 625 (1949); Bethlehem Steel Co. v Board, 219 Md. 146, 148 A.2d 403 (1959); Rusynko Unemployment Compensation Case [Bethlehem Steel Co. v. Unemployment Comp. Bd. of Rev.], 191 Pa.Super. 434, 156 A.2d 576 (1959), affirmed 402 Pa. 202, 166 A.2d 871 (1961) (evenly divided court); Oliver Unemployment Compensation Case [United States Steel Corp. v. Unemployment Comp. Bd. of Review], 189 Pa.Super. 362, 150 A.2d 361 (1959). In other cases, the class may be held to include two or more unions. This result may be based upon the relationship of the claimants...