Department of Industrial Relations v. Pesnell

Decision Date06 August 1940
Docket Number6 Div. 615.
Citation29 Ala.App. 528,199 So. 720
PartiesDEPARTMENT OF INDUSTRIAL RELATIONS v. PESNELL.
CourtAlabama Court of Appeals

Rehearing Denied Oct. 29, 1940.

Appeal from Circuit Court, Jefferson County; J. Q. Smith, Judge.

Proceeding by Alton Rufus Pesnell against the Department of Industrial Relations of the State of Alabama, to recover benefits under the Alabama Unemployment Compensation Act (Gen.Acts 1935, p 950). From a judgment for claimant, defendant appeals.

Reversed and rendered.

Certiorari denied by Supreme Court in Ex parte Pesnell, 6 Div. 771, 199 So. 726.

Voluntary idleness of member of union while his bargaining agents were discussing terms of a proposed contract with employer was not "unemployment" within state unemployment compensation law. Gen.Acts 1935, p. 958, § 6(d).

The claimant, Pesnell, filed his claim with the Department of Industrial Relations. A Deputy of the Department made an investigation and report denying the claim. Claimant then appealed to the Board of Appeals for the Department of Industrial Relations, which Board, after hearing, reversed the decision of the Deputy and ordered benefits to be paid. The Department of Industrial Relations appealed, under provisions of § 14, Subsec. 1(f), Industrial Relations Act 1939, Gen. Acts 1939, p. 241, to the Circuit Court of Jefferson County. The Circuit Court, after hearing on pleading and evidence, entered a decree affirming the decision of the Board of Appeals, and this appeal follows.

The cases relied upon by appellant and referred to in the opinion are as follows: Donnelly Garment Co. v. International Ladies' Garment Workers' Union, D.C.Mo., 20 F.Supp. 767; Cinderella Theater Co. v. Sign Writers' Local Union No. 591, D.C.Mich., 6 F.Supp. 164, 169; Jensen v. St. Paul Moving Picture Mach. Operators' Local Union No. 356, 194 Minn. 58, 259 N.W. 811; Associated Flour Haulers & Warehousemen v. Sullivan, 168 Misc. 315, 5 N.Y.S.2d 982, 985; Goldfinger v Feintuch, 276 N.Y. 281, 11 N.E.2d 910, 913, 116 A.L.R 477; Pitter v. Kaminsky, Sup., 7 N.Y.S.2d 10, 11; Bieber v. Bininbaum, 168 Misc. 943, 6 N.Y.S.2d 63, 64; Weil & Co. v. Doe, 168 Misc. 211, 5 N.Y.S.2d 559, 561; Paul v. Mencher, 169 Misc. 657, 7 N.Y.S.2d 821; Davega-City Radio v. Randau, 166 Misc. 246, 1 N.Y.S.2d 514, 515; American Gas Stations v. Doe, 250 A.D. 227, 293 N.Y.S. 1019, 1021; Thompson v. Boekhout, 273 N.Y. 390, 7 N.E.2d 674, 675; B. Gertz, Inc. v. Randau, 162 Misc. 786, 295 N.Y.S. 871, 873; People ex rel. Sandnes v. Sheriff of Kings County, 164 Misc. 355, 299 N.Y.S. 9, 16; Thompson v. Boekhout, 249 A.D. 77, 291 N.Y.S. 572, 576; Cole v. Atlanta Terminal Co., D.C.Ga., 15 F.Supp. 131, 132; Blanchard v. Golden Age Brewing Co., 188 Wash. 396, 63 P.2d 397, 403; National Labor Relations Board v. Mackay Radio & Telegraph Co., 304 U.S. 333, 58 S.Ct. 904, 82 L.Ed. 1381; National Labor Relations Board v. Carlisle Lumber Co., 9 Cir., 94 F.2d 138, 145; Union Premier Food Stores v. Retail Food Clerks and Managers Union, Local No. 1357, 3 Cir., 98 F.2d 821, 826; Oberman & Co. v. United Garment Workers of America, D.C.Mo., 21 F.Supp. 20, 25; Cupples Co. v. American Federation of Labor, D.C.Mo., 20 F.Supp. 894, 899; Donnelly Garment Co. v. International Ladies' Garment Workers' Union, D.C.Mo., 21 F.Supp. 807; New Negro Alliance v. Sanitary Grocery Co., 67 App.D.C. 359, 92 F.2d 510, 512; United Electric Coal Companies v. Rice, 7 Cir., 80 F.2d 1, 5, 6; Connelly Garment Co. v. International Ladies' Garment Workers' Union, D.C.Mo., 20 F.Supp. 767, 769, 770, 771, 772; Fehr Baking Co. v. Bakers' Union, D.C.La., 20 F.Supp. 691, 696; Donnelly Garment Co. v. International Ladies' Garment Workers' Union, D.C.Mo., 23 F.Supp. 998; L. L. Coryell & Son v. Petroleum Workers Union Local No. 18281, D.C.Minn., 19 F.Supp. 749, 752; Diamond Full Fashioned Hosiery Co. v. Leader, D.C.Pa., 20 F.Supp. 467, 469; Lauf v. E. G. Shinner & Co., 7 Cir., 82 F.2d 68, 72; Grace Co. v. Williams, 8 Cir., 96 F.2d 478, 480; New Negro Alliance v. Sanitary Grocery Co., 303 U.S. 552, 58 S.Ct. 703, 82 L.Ed. 1012; Lauf v. E. G. Shinner & Co., 303 U.S. 323, 58 S.Ct. 578, 580, 582, 82 L.Ed. 872; Lauf v. E. G. Shinner & Co., 7 Cir., 90 F.2d 250; United Electric Coal Companies v. Rice, 7 Cir., 80 F.2d 1, 5, 6; Houston & North Texas Motor Freight Lines v. Local Union No. 886, etc., D.C.Okl., 24 F.Supp. 619, 632; Sharp & Dohme v. Storage Warehouse Employees Union, etc., D.C.Pa., 24 F.Supp. 701, 702; Blankenship v. Kurfman, 7 Cir., 96 F.2d 450, 453; American Furniture Co. v. I. B. of T. C. and H. of A., etc., 222 Wis. 338, 268 N.W. 250, 259, 106 A.L.R. 335; Senn v. Tile Layers Protective Union, 222 Wis. 383, 268 N.W. 270, 872; Ex parte Lyons, 27 Cal.App.2d 293, 81 P.2d 190, 193; George B. Wallace Co. v. International Ass'n of Mechanics, etc., 155 Or. 652, 63 P.2d 1090, 1098; Senn v. Tile Layers Protective Union, etc., 301 U.S. 468, 57 S.Ct. 857, 861, 81 L.Ed. 1229; Dehan v. Hotel and Restaurant Employees and Beverage Dispensers, etc., La.App., 159 So. 637, 647; Miller Parlor Furniture Co. v. Furniture Workers' Industrial Union, D.C., 8 F.Supp. 209, 210; Safeway Stores, Inc., v. Retail Clerks' Union, Local No. 148, 184 Wash. 322, 51 P.2d 372; Starr v. Laundry and Dry Cleaning Workers' Local Union No. 101, 155 Or. 634, 63 P.2d 1104, 1110; Feldman v. Weiner, 173 Misc. 461, 17 N.Y.S.2d 730, 731; Purcell v. Journeymen Barbers and Beauticians, etc., 133 S.W.2d 662, 669; Lyle v. Local No. 452, etc., 174 Tenn. 222, 124 S.W.2d 701, 704; Silverglate v. Kirkman, 171 Misc. 1051, 12 N.Y.S.2d 505, 507; Lichterman v. Laundry and Dry Cleaning Drivers Union, etc., 204 Minn. 75, 282 N.W. 689, 690, 283 N.W. 752; Adams v. Building Service Employees International Union, etc., 197 Wash. 242, 84 P.2d 1021, 1023; Kraushaar v. Krug, Sup., 16 N.Y.S.2d 661, 662; Bergman v. Levenson, Sup., 13 N.Y.S.2d 955, 956; Kershnar v. Heller, Sup., 14 N.Y.S.2d 595, 597, 598; Muncie Building Trades Council v. Umbarger, Ind.Sup., 17 N.E.2d 828, 829; Boro Park Sanitary Live Poultry Market v. Heller, 280 N.Y. 481, 21 N.E.2d 687, 688; Quinton's Market v. Patterson, Mass., 21 N.E.2d 546, 550; Bent Steel Sections v. Doe, 170 Misc. 736, 10 N.Y.S.2d 920, 921; Miller v. Fishworkers Union of Greater New York, etc., 170 Misc. 713, 11 N.Y.S.2d 278, 281; Schwartz v. Fish Workers Union of Greater New York, etc., 170 Misc. 566, 11 N.Y.S.2d 283, 284; Stalban v. Friedman, 171 Misc. 106, 11 N.Y.S.2d 343, 350; Gips v. Osman, 170 Misc. 53, 9 N.Y.S.2d 828, 829; Opera on Tour v. Weber, 170 Misc. 272, 10 N.Y.S.2d 83, 84; Fur Workers Union, etc. v. Fur Workers Union, etc., 70 App.D.C. 122, 105 F.2d 1, 6; Converse v. Highway Const. Co., 6 Cir., 107 F.2d 127, 131, 127 A.L.R. 860; Dorrington v. Manning, 135 Pa.Super. 194, 4 A.2d 886, 891; International Union of United Brewery, etc. v. California State Brewers' Institute, D.C., 25 F.Supp. 870, 873; Moreschi v. Mosteller, D.C., 28 F.Supp. 613, 617; Rohde v. Dighton, D.C., 27 F.Supp. 149, 151; Baillis v. Fuchs, 258 A.D. 919, 16 N.Y.S.2d 724, 725; Pauly Jail Bldg. Co. v. International Ass'n., etc., D.C., 29 F.Supp. 15, 19; Bond Stores v. Turner, 258 A.D. 769, 14 N.Y.S.2d 705; Fairfield Bar & Restaurant v. Friedman, 172 Misc. 146, 14 N.Y.S.2d 709, 710; C. G. Conn, Ltd. v. National Labor Relations Board, 7 Cir., 108 F.2d 390, 397; Lake Valley Farm Products v. Milk Wagon Drivers' Union, 7 Cir., 108 F.2d 436, 442; Opera on Tour v. Weber, 258 A.D. 516, 17 N.Y.S.2d 144, 149; Boro Park Sanitary Live Poultry Market v. Heller, 256 A.D. 588, 11 N.Y.S.2d 164, 166; Tucker v. Gillmore, 172 Misc. 132, 14 N.Y.S.2d 221, 222; Abeles v. Friedman, 171 Misc. 1042, 14 N.Y.S.2d 252, 259.

Lange, Simpson, Brantley & Robinson, of Birmingham, Frank R. Broadway and J. Eugene Foster, both of Montgomery, and James A. Simpson, of Birmingham, for appellant.

Hugh A. Locke and Yelverton Cowherd, both of Birmingham, for appellee.

BRICKEN Presiding Judge.

At the time this appeal was submitted in this court, it was extensively argued by respective counsel for the better part of two days. We were there informed, and the record bears out the statement, that the controlling question in this case is whether the appellee's unemployment was directly due to a "labor dispute" as that term is used in Section 6(d) of the Alabama Unemployment Compensation Law, Acts 1935, pages 950, 958, which reads as follows: "Section 6. * * * (d) During Trade Disputes. An employee shall not be eligible for benefits for any week in which his total or partial unemployment is directly due to a labor dispute still in active progress in the establishment in which he is or was last employed."

The record consisting of several hundred pages, and likewise voluminous and excellent briefs of the respective counsel, have been read with care and have been accorded attentive consideration. While much evidence was taken to establish the facts, we find that the controlling facts very clearly appear. They may be summarized as follows:

The United Mine Workers of America is a national labor organization. For administrative purposes it has divided the coal mining territories in the United States into several districts. The Alabama territory is known as District No. 20. Within each district are Local Unions; The Locals report to the District Office and the District Office reports to the National Office. The District Office of District No. 20 is located in Birmingham, Alabama. The National Office is located without the State of Alabama.

The appellee was a member of a Local Union of the United Mine Workers of America at Edgewater Mines in District No. 20. He had designated in writing, and filed with his employer, the National Organization and John L. Lewis, its President Phillip Murray, its Vice-President, Thomas Kennedy, its Secretary...

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    ...36 So.2d 535, certiorari denied 251 Ala. 153, 36 So.2d 547. The first case dealing with the statute was Department of Industrial Relations v. Pesnell, 1940, 29 Ala.App. 528, 199 So. 720, certiorari denied Ex parte Pesnell, 240 Ala. 457, 199 So. 726, certiorari denied 313 U.S. 590, 61 S.Ct. ......
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