Cruz v. Department of Employment Sec.

• Decision Date: 29 April 1969
• Docket Number: No. 11354,11354
• Citation: Cruz v. Department of Employment Sec., 453 P.2d 894, 22 Utah 2d 393 (Utah 1969)
• Parties: d 393 Benny CRUZ, Plaintiff, v. DEPARTMENT OF EMPLOYMENT SECURITY of the State of Utah, Defendant.
• Court: Utah Supreme Court

Page 894

453 P.2d 894

22 Utah 2d 393

Benny CRUZ, Plaintiff, v. DEPARTMENT OF EMPLOYMENT SECURITY of the State of Utah Defendant.

No. 11354.

Supreme Court of Utah.

April 29, 1969.

Galen Ross, of Mitsunaga & Ross, Salt Lake City, for appellant.

Vernon B. Romney, Atty. Gen., Fred F. Dremann, Asst. Atty. Gen., Salt Lake City, for respondent.

HENRIOD, Justice:

Review of defendant's decision that plaintiff employee was disqualified from receiving benefits under Title 35--4--5(d), Utah Code Annotated 1953. ¹ Affirmed with no costs awarded.

Mr. Cruz was employed by Kennecott Copper for 12 years between 1955 and July 15, 1967, and thereafter, as a heavy equipment operator. He was a member of Operating Engineers Local #3. On July 15, 1967, the United Steelworkers went out on strike against Kennecott, and Cruz refused to cross the picket line. Some time in 1966 he had gone to work for Pioneer Sand & Gravel, performing bulldozer work for that company, which work was seasonal as the facts reflect. This work that he performed for the sand company paid about the same hourly rate, but did not have the fringe benefits incident to his employment with Kennecott. It was in addition to that he performed for Kennecott, and was undertaken to pay the expenses of his hospitalized son,--which is most commendable.

On April 20, 1967, less than three months before the strike, he went with the sand company on an eight-hour basis, in addition to his work with Kennecott. He continued on with the sand company after the strike until December 20, 1967, when he was laid off because of inclement weather. He did not quit his job with Kennecott, and he returned to work there after about three months' unemployment after leaving the sand company. From the inception of the strike until final settlement (eight months) he retained his seniority rights and other benefits incident to his employment with Kennecott, he himself paying premiums on his group insurance policy, etc. He had no such rights or obligations, and no such fringe benefits with the sand company. He conceded he would return to Kennecott when and if the strike were settled, which he did. Under the facts of this case there seems to be no question as to an uninterrupted employee-employer relationship ² during the strike, although there was a work stoppage. It was a sort of forced sick leave without pay, with a shortage of Steelworker-Kennecott contractual balm or medication.

The question arises as to whether an employee out on strike against his employer and who takes a job after the strike with another employer, is qualified for benefits if the latter employer lets him go for some reason with which the employee had nothing to do. Generally, paraphrasing the statement in Scott v. U.C.C. ³ in showing qualification for benefits the applicant must 1) show he is not disqualified, 2) that the fact of employment after the strike alone does not sustain such burden, 3) the new employment must be intended to be permanent, with an intention not to return to his former employment, 4) must be in good faith and of a type the employee performed theretofore, 5) accomplished and undertaken by complete severance from his former employment. ⁴

Applying the guidelines above, we can come to no other conclusion except had Cruz gone with the sand company after the strike, such employment would not have made him eligible after being let out by the sand company, under the facts of this case, the guidelines mentioned and the authorities cited. The circumstance of double employment at the time of the strike under the facts and concessions here, should not serve to transmute disqualification into qualification. It takes little imagination to conclude that were we to decide otherwise, dozens or more employees, anticipating a strike, by the simple device of obtaining a second job a week or so before the strike, with a subsequent reduction in force by the second employer, could become eligible for benefits. We do not believe such a conclusion would be compatible with the letter and spirit of the statute.

CALLISTER, TUCKETT and ELLETT, JJ., concur.

CROCKETT, Chief Justice: (Dissenting.)

It is my opinion that the correct view of the situation presented here, and the one which is in harmony with the governing statute and its purposes--and which does justice in this case--is to allow workmen's compensation on account of plaintiff's involuntary layoff by Pioneer Sand & Gravel.

First, let it be said that I do not disagree with the cases cited in the main opinion. But it will br noted that they deal with situations where a job is taken while a strike is in progress and there is then a layoff in what may be called the substitute job. The underlying assumption in those cases is that a man has only one job and that, when a strike exists with respect to it, the substitute job is used as an economic weapon in the strike conflict. In such instances it is held that as to the regular employer, the employee-employer relationship continues during the strike and that the worker's unemployment was in fact due to the strike of his group of workers on the job at which he was last employed. But insofar as I have been able to determine, or have been made aware, there are no cases which have ruled upon the question presented here under circumstances similar to the instant case.

The facts in this case as presented to the Commission and to this court are that plaintiff was also a regular and permanent employee of Pioneer Sand & Gravel Co., and had been such, long before the Kennecott strike was thought of. Due to the fact that he had a son who required extraordinary medical expenses he had found it necessary to hold down two regular jobs. Because of this necessity, by dint of his initiative and industriousness, he had in effect created for himself two separate jobs and two separate incomes. It is without dispute that Cruz has been able to take care of both jobs without them interfering with one another.

There is no indication that this other job had any relationship whatsoever to the Kennecott job, nor that it could be regarded as a substitute or 'stop-gap' job during or related to the strike. It was simply another full-time permanent job which the plaintiff found it necessary and desirable to hold. Nor can I see any justification for the characterization of plaintiff's employment at Pioneer as a secondary job. The record does not show how Cruz regarded it. The pay on each job was about the same and it is entirely possible that if he had had to choose between them, he may have considered it his No. 1 and not his No. 2. job. But that really makes no difference. So long as the job with Pioneer was regular, permanent, good-faith employment, it should be regarded as such and he should have all of the rights and benefits pertaining thereto. ¹

In order to see the problem here involved in its true and fair perspective, I think it is proper to visualize Mr. Cruz as what he in fact had by his initiative and industry become, a twin man: Cruz No. 1, the employee of Kennecott, and Cruz No. 2, the employee of Pioneer. If Cruz No. 1 became unemployed due to the strike at Kennecott, he would not be eligible for benefits. But when Cruz No. 2, who, , i emphasize, had a completely separate, independent and prior existing job at Pioneer, became involuntarily...