Cumberland & Allegheny Gas Co. v. Hatcher

• Decision Date: 12 March 1963
• Docket Number: No. 12180,12180
• Citation: 147 W.Va. 630,130 S.E.2d 115
• Parties: CUMBERLAND AND ALLEGHENY GAS COMPANY v. Lewis A. HATCHER, Clerk, et etc., et al.
• Court: West Virginia Supreme Court

Page 115

130 S.E.2d 115

147 W.Va. 630

CUMBERLAND AND ALLEGHENY GAS COMPANY v. Lewis A. HATCHER, Clerk, et etc., et al.

No. 12180.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 15, 1963.

Decided March 12, 1963.

Syllabus by the Court

1. 'A stoppage of work' which exists because of a labor dispute, within the meaning of the unemployment compensation statutes of this state, may result either from a strike on the part of the employees or from a lockout on the part of the employer.

2. The term 'stoppage of work', within the meaning of the unemployment compensation statutes of this state, refers to the employer's operations rather than to a mere cessation of employment by claimants of benefits under the provisions of such statutes; and, in order that employees may be disqualified from receiving unemployment compensation benefits because of 'a stoppage of work' resulting from a labor dispute, it must appear that there has resulted a substantial curtailment of the employer's normal operations.

3. In a determination whether there exists a 'stoppage of work' as a result of a labor dispute, the unemployment compensation statutes of this state make no distinction between employers which are public utilities and other types of employers.

4. Where there is no material conflict in the pertinent evidence, a determination whether there exists 'a stoppage of work' as a consequence of a labor dispute, within the meaning of the unemployment compensation statutes of this state, becomes a question of law as distinguished from a finding of fact.

Kay, Casto & Chaney, Vincent V. Chaney, Charleston, James Alfred Avirett, Cumberland, Md., for petitioner.

C. Reeves Taylor, Joseph A. Blundon, Keyser, for respondents.

CALHOUN, Judge.

This case involves a proceeding upon a writ of certiorari granted by this Court to the Circuit Court of Kanawha County pursuant to the provisions of Chapter 21A, Article 7, Section 27 of the Code, 1931, as amended, from a decision and order of the circuit court which affirmed a prior decision of the Board of Review of the West Virginia Department of Employment Security the effect of which was to affirm an award of unemployment benefits to various claimants for loss of work during the period from July 29, 1960, to August 26, 1960.

The basic question presented is whether the claimants were unemployed during the period in question 'due to a stoppage of work' which existed 'because of a labor dispute' pursuant to the provisions of Section 4(4), Article 6, Chapter 21A, Code, 1931, as amended.

The Cumberland and Allegheny Gas Company (referred to herein as the employer or as the gas company)$8 a corporation organized and existing under the laws of West Virginia, with offices at Keyser, is a public utility engaged in the business of supplying and selling natural gas to industrial and domestic consumers in certain adjacent areas in West Virginia and Maryland. It is an 'employer' within the meaning of Chapter 21A, Code, 1931, as amended.

The claimants are respondents David L. McRobie, Harry K. Thomas, Robert L. Fisher, Jr., Walter H. Ganoe, William P. Davis, Timothy F. Kady, Robert F. Kalbaugh, Charles J. King, Jr., William H. Grove, Victor Liller, Jr., Donald McKenzie, Frederick J. Neff, Lacy L. Tinsley and Grover T. Bosley. With the exception of Harry K. Thomas, the claimants are members of a local bargaining unit and labor organization known as Local No. 419, Utility Workers Union of America.

In August, 1960, the claimants filed with the West Virginia Department of Employment Security their individual claims for unemployment compensation benefits under the provisions of Chapter 21A of Code, 1931, as amended, due to unemployment during the period from July 29, 1960, to August 26, 1960. By decisions rendered on September 15 and 16, 1960, by two different deputies in the department of employment security (each of which deputies considered claims of different groups of claimants), findings were made that the claimants were eligible for unemployment benefits and were not disqualified therefrom. The employer, Cumberland and Alleghney Gas Company, duly appealed from the deputies' decisions. Upon appeal a hearing was held on October 25, 1960, before a trial examiner for the Board of Review of the West Virginia Department of Employment Security. The trial examiner affirmed the decisions of the deputies.

The employer thereupon appealed to the board of review from the decision of the trial examiner. On April 25, 1961, a hearing on such appeal was held by the board of review at which hearing additional evidence was received. By a decision dated July 14, 1961, the board of review affirmed the decision of its trial examiner. Both the opinion of the trial examiner and the opinion of the board of review, upon which their respective decisions were based, held that there was a labor dispute in existence at the time claimants were unemployed, and that the claimants' unemployment occurred because of such labor dispute; but the trial examiner and the board of review further held that there was no 'stoppage of work' within the meaning of Chapter 21A Article 6, Section 4(4) of the Code, 1931, as amended, and that therefore the claimts were not disqualified from receiving benefits under the provisions of the statute.

An appeal from the decision of the board of review was duly made to the Circuit Court of Kanawha County, West Virginia. After a review of the record and consideration of briefs filed by the parties, the circuit court by an order dated February 8, 1962, entered a judgment affirming the final order of the board of review.

For many years prior to the events giving rise to this case, the gas company and the union had operated under collective bargaining contracts. Each of these contracts was for one year and ran from June 1 of one year to June 1 of the next year. Each party had the right to terminate the contract by giving notice to the other party sixty days prior to June 1. If neither party gave such notice, the contract was automoatically renewed for another year.

On March 22, 1960, the union advised the gas company that the collective bargaining contract then in existence between the union and the gas company would cease to be in effect and would be terminated as of June 1, 1960. Subsequent to the giving by the union and receipt by the gas company of such notice of termination, the gas company and the union entered into and carried on extensive collective bargaining negotiations. Although six or more meetings were held, the parties were unable to arrive at an agreement or to agree to the execution of a new collective bargaining contract despite the fact that the gas company proposed and offered to renew the collective bargaining contract which had been in effect prior to June 1, 1960, for an additional one-year period and further offered to make retroactive in a new contract any pertinent benefits which might result to employees from negotiations then being carried on in other parts of the gas company's system.

During the month of June, 1960, while the negotiations and meetings were in progress between the gas company and the union, a secret strike vote was taken by the union. This was termed 'a vote of confidence' but in effect it was an authorization by members of Local 419 to their regional representative to call a strike against the gas company whenever the international union might see fit to do so. This placed the gas company in the position of operating without any contractual safeguards against strikes and under the continuing possibility of having a strike called at any time chosen by the union. This presented to the gas company, according to its contention and testimony, the danger of having a strike called during the winter period when the gas company's duty as a public utility to supply gas to its customers for space heating purposes would be cruical. In these circumstances, the gas company imposed a partial lockout while the weather was still warm.

On July 29, 1960, a final meeting was held between representatives of the gas company and the union. Negotiations had come to a complete impasse on the primary issue of wages. The gas company then issued the following statement to the union and to all claimants involved in this case:

'As a consequence of the impasse in contract negotiations between Local 419 and Cumberland and Allegheny Gas Company, the Company will impose a partial lockout to become effective as of midnight, Friday, July 29, 1960.

'The lockout will include all members of Local 419, UWUA with the exception of those assigned to special duty. Individuals selected for special duty will be so informed by their supervisors. * * *.'

The gas company accordingly called the lockout affecting all members of Local 419 'with the exception of those assigned to special duty' and sent a letter to each of its employees explaining the entire situation.

Picket lines were placed around all of the gas company's properties and places of business. Picketing was continued in a peaceable manner by the union until August 26, 1960, when the labor dispute was terminated. In the meantime the gas company sought to have the union furnish seventeen men to perform emergency work during the period of the partial lockout. This the union refused to do. Each of the claimants was offered an opportunity to be included among the list of seventeen men to perform emergency work during the priod of the partial lockout and none of the claimants accepted such offer.

During the period from July 29, 1960, to August 26, 1960, as a result of this labor dispute, the gas company's entire labor force of 79 men who were paid on an hourly basis ceased to work. No new employees were hired by the gas company to perform andy of their duties, but emergency or essential duties normally performed by the claimants were performed by seventeen supervisory and promotional employees of the company. According to the...