Dienes v. Holland

• Decision Date: 13 September 1978
• Docket Number: No. 77-678,77-678
• Citation: Dienes v. Holland, 380 N.E.2d 1156, 64 Ill.App.3d 109, 20 Ill.Dec. 947 (Ill. App. 1978)
• Parties: , 20 Ill.Dec. 947 John DIENES, Alfred Cavazos and Rueben F. Rodriguez, Plaintiffs-Appellants, v. Kenneth W. HOLLAND, Director of Labor, State of Illinois and Continental Grain Co., Defendants-Appellees.
• Court: Appellate Court of Illinois

Page 1156

380 N.E.2d 1156

64 Ill.App.3d 109, 20 Ill.Dec. 947

John DIENES, Alfred Cavazos and Rueben F. Rodriguez Plaintiffs-Appellants, v. Kenneth W. HOLLAND, Director of Labor, State of Illinois and Continental Grain Co., Defendants-Appellees.

No. 77-678.

Appellate Court of Illinois, First District, Third Division.

Sept. 13, 1978.

Harold A. Katz, Irving M. Friedman, Jerome Schur, Stanley Eisenstein, Chicago, for plaintiffs-appellants; Katz & Friedman, Chicago, of counsel.

William J. Scott, Atty. Gen., Chicago, for defendants-appellees; George W. Lindberg, Paul J. Bargiel, Chicago, of counsel.

McNAMARA, Justice.

Plaintiffs, John Dienes, Alfred Cavazos, and Rueben Rodriguez, appeal from an order of the circuit court of Cook County upholding a decision of the Director of Labor in favor of Continental Grain Company. The Director found that plaintiffs were ineligible to receive unemployment compensation benefits under section 604 of the Illinois Unemployment Compensation Act. Ill.Rev.Stat.1977, ch. 48, par. 434.

Prior to September 1, 1971, plaintiffs were employed by Continental, an operator of grain elevators in the Chicago area. On that date, members of a union began a lawful economic strike against all grain elevator employees in the Cook County area. Plaintiffs did not cross the picket line at Continental. The work stoppage ended in October 1971, but resumed in November.

During November 1971, plaintiffs obtained employment with another grain elevator employer, Carey Grain Corporation, which had reached an agreement with the union. Dienes, who had been employed by Continental as an operator, worked at Carey as a maintenance man from November 22, 1971 to January 8, 1972. Rodriguez, an operator at Continental, had the same position and income at Carey from November 12, 1971 to January 8, 1972. Cavazos worked at Carey from November 30 to December 25, 1971. He was a millwright at Continental, but the record does not show his position at Carey. Plaintiffs were laid off at Carey due to lack of work. They returned to Continental at the termination of the strike.

After they were laid off by Carey, plaintiffs filed claims for unemployment compensation benefits for the period of that layoff. At the hearing, Dienes and Cavazos testified that they considered their employment at Carey to be permanent. Rodriguez, who the record discloses has difficulty with the language, did not clearly testify whether he intended to remain at Carey indefinitely. He stated, "They (Carey) said for temporary . . . but they give me layoff in 30 days."

The Director determined that plaintiffs were ineligible to receive benefits under section 604 which provides in pertinent part:

"An individual shall be ineligible for benefits for any week with respect to which it is found that his total or partial 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 is or was last employed."

The Director found that, for purposes of determining eligibility, plaintiffs "last employer" was Continental. He further found that since the work stoppage at Continental was due to a labor dispute, plaintiffs could not claim unemployment compensation benefits. The Director concluded that plaintiffs' employment at Carey did not constitute severance of their employment relationship with Continental because plaintiffs did not intend to be employed permanently at Carey, did not notify Continental of their intention to quit, and, in fact, returned to Continental at the strike's end. The trial court upheld the Director's decision.

Plaintiffs contend that the interpretation placed by the Director upon the phrase "last employed" was erroneous or, in the alternative, that the Director's decision was contrary to the manifest weight of the evidence. Plaintiffs maintain that "last employed" as used in section 604, should literally be construed to mean "last in time" and that such a construction would mandate a finding that plaintiffs' last employer was Carey. Since there is no qualifying language in the statute, plaintiffs contend that the Director erred in imposing a requirement that the subsequent employment be bona fide, permanent, and result in a complete severance of the former employment relationship. Plaintiffs further argue that even if such an interpretation is correct, the Director's decision is contrary to the manifest weight of the evidence since two plaintiffs testified that they considered their prior jobs at Carey to be permanent. No evidence to the contrary was introduced. As we have noted, the testimony of Rodriguez on this point was ambiguous.

The Director maintains that his interpretation of the phrase "last employed" is consistent with the policy underlying section 604, namely, that the State shall not lend support to one side of a labor dispute by paying unemployment compensation benefits to those who elect to strike. (Buchholz v. Cummins (1955), 6 Ill.2d 382, 128 N.E.2d 900.) The Director states that the construction of the statute urged by plaintiffs would undermine this policy by permitting striking employees to circumvent the ineligibility provision simply by obtaining temporary interim employment. The Director argues that under plaintiffs' interpretation, any subsequent employment for however short a period and regardless of the employee's good faith in obtaining that employment, would remove the disability. The Director urges that the legislature could not have intended this result. The Director contends that "last employed" is intended to mean last regularly or permanently employed and that such an interpretation is both consistent with the legislative policy and with the interpretation employed by courts in other jurisdictions.

Since the issue is dispositive of this appeal, we need consider only whether the Director applied the proper standard to determine whether claimants were eligible for benefits. This question is a matter of first impression in Illinois. The Director relied primarily upon a California case, Mark Hopkins, Inc. v. Cal. Emp. Com. (1944), 24 Cal.2d 744, 151 P.2d 229, as authority for the conclusion that claimants were ineligible for benefits. The relevant portion of the California Unemployment Insurance Act (Stats.1939, ch. 7, sec. 4, Deering's Gen.Laws 1939, Supp.Act 8780d, sec. 56(a)), provided that an individual would not be eligible for benefits "(i)f he left his work because of a trade dispute and for that period during which he continues out of work by reason of the fact that the trade dispute is still in active progress in the establishment in which he was employed." The claimants in Mark Hopkins obtained employment subsequent to the beginning of the strike, but were for various reasons unemployed before the strike ended. The claimants also stated that they intended to return to their original employer at the termination of the strike. The California Supreme Court held that claimants' subsequent employment did not serve to remove the disqualification imposed by the statute since the claimants failed to sustain their burden of showing that their subsequent employment was bona fide and permanent. The Mark Hopkins rationale has been followed in several other jurisdictions which have considered the issue. See In re Hatch (1972), 130 Vt. 248, 290 A.2d 180; E. I. DuPont De Nemours & Company v. Dale (Del.Sup.1970), 271 A.2d 35; Scott v. U. C. C. (1962), 141 Mont. 230, 376 P.2d 733; Huck v. Industrial Commission (Mo.App.1962), 361 S.W.2d 332; Oluschak Unempl. Compensation Case (1960), 192 Pa.Super. 255, 159...