Ex parte McCleney

• Decision Date: 03 September 1970
• Docket Number: 6 Div. 592
• Citation: 286 Ala. 288,239 So. 2d 311
• Parties: Ex parte Robert J. McCLENEY and Lester Leon Whitsett. In re W. S. DICKEY CLAY MANUFACTURING COMPANY, a Corporation v. Robert J. McCLENEY and Lester Leon Whitsett. , 592--A.
• Court: Alabama Supreme Court

Page 311

239 So.2d 311

286 Ala. 288

Ex parte Robert J. McCLENEY and Lester Leon Whitsett In re W. S. DICKEY CLAY MANUFACTURING COMPANY, a Corporation v.Robert J. McCLENEY and Lester Leon Whitsett.

6 Div. 592, 592--A.

Supreme Court of Alabama.

Sept. 3, 1970.

C. V. Stelzenmuller, Birmingham, Thomas, Taliaferro, Forman, Burr & Murray, Birmingham, Corretti, Newsom & Rogers, Birmingham; Brobston & Brobston, Bessemer, of counsel, for petitioners and cross-respondents and respondents and cross-petitioners.

John J. Coleman, Jr., A. H. Gaede, Jr., Birmingham, Bradley, Arant, Rose & White, Birmingham, of counsel, amici curiae.

MERRILL, Justice.

Petition of Robert J. McCleney and Lester Leon Whitsett for certiorari to the Court of Appeals in the case of W. S. Dickey Clay Manufacturing Co. v. Robert J. McCleney and Lester Leon Whitsett; and petition for certiorari of W. S. Dickey Clay Manufacturing Co. to the Court of Appeals in the same cases, 239 So.2d 304.Amici curiae brief was filed on behalf of the Alabama State Chamber of Commerce and Associated Industries of Alabama, also supporting certiorari.

On certiorari, the Supreme Court will not enter into a redetermination of facts as found by the Court of Appeals.State Dept. of Industrial Relations v. Ford, 278 Ala. 352, 178 So.2d 190(1965).

The facts as reported by the then Court of Appeals were substantially as follows: On February 8, 1965, LocalNo. 827 of the United Brick and Clayworkers of America, consisting of 17 employees of Dickey Company, commenced a strike at about 5:30 A.M Dickey employed about 200 men in the manufacture of clay pipe, most of whom are represented by the United Steelworkers of America.The two claimants for unemployment compensation were members of the steelworkers union which did not go out on strike.The plant superintendent stated that the plant would not operate during a strike.The first acts of violence occurred on February 17, 1965.Then on February 18, 1965, the superintendent mailed a letter to all non-striking employees informing them that they were to report to work on February 22, 1965.The opinion of the Court of Appeals stated that 'During this period some of the non-striking employees had returned to work and it was against them that the initial acts of violence occurred,' apparently referring to a period between February 8 and February 18, 1965.The superintendent, McCroskey, mailed out a second letter to non-striking employees which stated that failure to report to work by March 1, 1965 would result in termination of their employment.The claimants' employment was then terminated as they failed to report for work.

According to the opinion, McCleney testified that he reported for work on February 8, where he found about 150 people milling around; that there were threats not to go into the plant, and that he never saw any violence.McCleney had testified that he never thought it was proper to cross any man's picket line.Whitsett had also found the same situation on February 8 and he, too, did not go into the plant.Both Whitsett and McCleney registered for unemployment compensation on February 8, 1965, under Tit. 26, § 214(A),Code 1940.They never returned to work.Eighty of the non-striking employees reported for work on February 17, 1965, and 117 on February 18, 1965.The strike was finally settled on February 4, 1966.

The opinion of the Court of Appeals set out more facts than we have stated in this opinion, but we deem our statement to be sufficient to show that this case deals with the requirements for eligibility for unemployment compensation under Tit. 26, § 214(A), when the claimants did not cross a picket line because of 'an intervening cause which was his fear of consequences if he went to work and thus ignored the picket line,' and our holding is confined to a consideration of the 'violence exception' in picket-line cases.

The issue presented in this case is whether the claimants were disqualified from receiving unemployment compensation by virtue of Tit. 26, § 214(A), which provides in pertinent part:

' § 214.Disqualification for benefits.--An individual shall be disqualified for total or partial unemployment:

'A.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; for the purposes of this section only, the term 'labor dispute' includes any controversy concerning terms, tenure or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment, * * *.'

The trial court found that the petitioners were entitled to the benefits.The Court of Appeals conditionally affirmed and remanded with instructions to hold hearings into the period of time elapsing from the end of the violence for the duration of all claims.The claimants argued that there is a 'violence exception' to Tit. 26, § 214(A).This exception to the statute is a judicial interpretation which provides that if a claimant for unemployment compensation can show a well-founded fear of personal violence, his refusal to cross a picket line would not entail his disqualification.This exception was first mentioned in Speagle v. United States Steel Corporation, 268 Ala. 3, 105 So.2d 717(1958), in the court's preliminary observation to several questions which had been certified to it from the Court of Appeals.This court there noted in a remark which is correctly termed as dictum that there are many cases which hold that refusal to cross a picket line does not disqualify an employee for benefits when such refusal results from a well-founded fear of personal violence to do so, where his job continues to be open to him by his employer.See also, 28 A.L.R.2d 333.In Speagle, this court did hold that a voluntary refusal by an employee to cross a peaceful picket line set up by a union of which claimant was not a member would disqualify him under Tit. 26, § 214(A), where his job remained open to him by his employer.The Dictum in Speagle reappeared in Pledger v. Department of Industrial Relations, 40 Ala.App. 127, 108 So.2d 697(1959), where Judge Cates wrote that If the trial court had determined that the claimant had a well-founded fear of personal violence, then his refusal to cross a picket line would not result in his disqualification for benefits.But in that case, the picket line was peaceful.

In the instant case, the Court of Appeals held that a violence exception exists.It is urged in the brief amici curiae that such an exception does not exist in Alabama because it has only been mere rhetoric of the courts in the Speagle and Pledger cases.It is further urged that this court reappraise our decision in Usher v. Department of Industrial Relations, 261 Ala. 509, 75 So.2d 165(1954), which held (4--3) in effect that a claimant would not be denied unemployment benefits because of a 'labor dispute' in which he was in no way involved where the employer closed the plant because of a strike by another union.Usher reaffirmed the rule as earlier announced in Department of Industrial Relations v. Drummond, 30 Ala.App. 78, 1 So.2d 395(1941), where the statute, Tit. 26 § 214(A), had not then been amended to define a 'labor dispute.'The majority in Usher quoted the following from Drummond:

'* * * The conclusion is inescapable that the Legislature never intended that one, who has purchased his protection against involuntary unemployment, should be denied those benefits because of a 'labor dispute' in which he was in no way involved and the causes of which unemployment he, his agents or organization were powerless to avert. * * *'

We refused to reappraise Usher in United States Steel Corp. v. Goodwin, 267 Ala. 612, 104 So.2d 333(1958).The Court of Appeals followed Usher at least nine times and we tacitly accepted it unanimously in Speagle, 268 Ala. 3, 105 So.2d 717.

Since the Usher decision was announced in 1954, Tit. 26, § 214 has been amended three times, in 1955, 1965 and 1969.Our interpretation remains unchanged by the legislature.

We revert to the dicta in Speagle and Pledger.In Speagle, all the Justices concurred in the following:

'There are many cases which hold that the refusal to cross a picket line to go to work does disqualify an employee for benefits, (when such refusal does not result from a well-founded apprehension of personal violence to do so, and his job continues to be open to him,) because such is a 'participation' in a labor dispute which under the statute disqualifies one for so doing.Baldassaris v. Egan, 135 Conn. 695, 68 A.2d 120;American Brake Shoe Co. v. Annunuzio, 405 Ill. 44, 90 N.E.2d 83;Aitken v. Board of Review, 136 N.J.L. 372, 56 A.2d 587.See, also, 28 A.L.R.2d 333.'(Brackets supplied.)

In Pledger, the Court of Appeals said:

'Had the trial court determined that Mr. Pledger had a well-founded fear of personal violence, then his refusal to cross the picket line would not have entailed his disqualification.SeeSpeagle v. United States Steel Corporation(268 Ala. 3), 105 So.2d 717.'

Neither statement was required to decide the question before the court in either case, but it is clear that both this court and the then Court of Appeals felt that the answer to the question should at least be qualified by the 'violence exception.'The cases cited by this court in Speagle support the exception and the annotation, 28 A.L.R.2d, § 20, p. 333, states, before citing cases from twelve states:

'It is generally held that voluntary refusal to cross a peaceful picket line constitutes participation in a strike.Conversely, the same cases support the proposition that an employee is not disqualfied from receiving benefits where his refusal to cross a picket line was caused by fear of violence.'

We think that the 'violence exception' is reasonable and that the legislature never...