Hatch, In re

• Decision Date: 04 April 1972
• Docket Number: No. 65-71,65-71
• Citation: 130 Vt. 248,290 A.2d 180
• Parties: , 61 A.L.R.3d 756 In re Kenneth E. HATCH.
• Court: Vermont Supreme Court

Page 180

290 A.2d 180

130 Vt. 248, 61 A.L.R.3d 756

In re Kenneth E. HATCH.

No. 65-71.

Supreme Court of Vermont.

April 4, 1972.

John A. Dooley, III, and Charles Carrington, Vermont Legal Aid, Inc., Rutland, for plaintiff.

James M. Jeffords, Atty. Gen., and Raymond S. Fitzpatrick, Asst. Atty. Gen., for Employment Security Board.

Before SHANGRAW, C. J., and BARNEY, SMITH, KEYSER and DALEY, JJ.

KEYSER, Justice.

The appellant (claimant) has appealed to this Court from the decision of the Vermont Employment Security Board (Board), denying his claim for unemployment compensation filed on November 23, 1970.

The case is one of first impression relating to the labor dispute disqualification provision of the Unemployment Compensation Law, 21 V.S.A. § 1344(5).

The appellant, while employed at Jones & Lamson Machine Company (J&L) in Springfield, Vermont, was among the members of his union who struck on June 9, 1970. This caused the plant to close down and a work stoppage followed. In September 1970, the appellant obtained employment at Craig Machine Company (Craig) in Alstead, New Hampshire, where he resided. Due to a lack of work orders, the claimant's employment at Craig ceased after nine weeks. On November 23, 1970, he filed a claim for unemployment compensation. His claim was denied by the claims examiner, the referee and the Board under 21 V.S.A. § 1344(5) relating to disqualification of benefits. This subsection (5) reads:

'An individual shall be disqualified for benefits . . .

(5) For any week with respect to which the commissioner finds 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, provided that this subdivision shall not apply if he is not participating in or financing or directly interested in the labor dispute which caused the stoppage of work.'

The issues set forth in the agency's certified statement can be summarized as follows: (1) whether the findings of fact are supported by the evidence; (2) whether the findings support the conclusion of the Board that the claimant's unemployment was due to a work stoppage at J&L arising from a labor dispute between his union and the company; (3) whether the findings support the conclusion of the Board that the fact claimant found employment with another employer while the work stoppage was in progress at his last place of employment (J&L) did not terminate his employee status with that company.

The claimant does not challenge any of the findings of fact as not having appropriate evidentiary support. This negates any issue in respect to the findings of fact. Moreover, a careful examination of the appeal record establishes that the findings of the Board are amply supported by evidence adduced at the hearings before the Board and Referee and thus must stand. Villeneuve v. Commr. of Taxes, 128 Vt. 356, 357, 264 A.2d 774.

The conclusions of the Board which form the basis of its decision are quoted as follows:

'In this case it is concluded that the claimant's unemployment was due to a stoppage of work which existed because of a labor dispute at the establishment at which he was employed, when as a member of the striking union he was directly interested in the labor dispute that caused the stoppage of work, as he would be a beneficiary of any benefits obtained by the union in any contract negotiated between the union and the employer resulting from the labor dispute. It is further concluded that the fact that claimant found and performed services in employment with another employer while the work stoppage was in progress at his last place of employment did not terminate his employee status with the Jones and Lamson Machine Company, when such employment was temporary and of stop-gap nature, and when at no time was there an unequivocal termination of claimant's employment status with the Jones and Lamson Machine Company.

Decision:

The decision of the Chief Appeals Referee is affirmed and claims are denied accordingly.'

The appellant claims that the decision of the employment security board is in error for two reasons: (1) that whatever the nature of the petitioner's employment with Craig, it was his last employment for the purpose of his eligibility for Unemployment Compensation benefits and since his termination from that employment was in voluntary, he was eligible for benefits, and (2) that petitioner's intervening employment with Craig was permanent and thus severed the employment relationship with J&L so that the petitioner is entitled to benefits.

The appellant's first argument centers around the question of the legislative intent of the words 'at which he is or was last employed' used in 21 V.S.A. § 1344(5). The appellant argues that this quoted language can only be construed to mean 'last in time.' The appellee contends the phrase means 'last permanently employed.' The Act does not define 'last' or 'last employed' and its meaning thus becomes the subject of judicial interpretation. And we are by no means confined to a literal interpretation of the statutory language. Westinghouse Elec. Corp. v. Board of Review, 25 N.J. 221, 135 A.2d 489, 492.

The interpretation of the wording 'at which he is or was last employed' is stated by M. Shadur in his law review article, Unemployment Benefits and the 'Labor Dispute' Disqualification, 17 U.Chi.L.Rev. 294, 315 (1950). This phrase is there said to evidence legislative intent to approve the so-called 'purge' doctrine, that is, the removal of the 'labor dispute' disqualification by taking new employment. Such new employment the Review states, has been thus qualified:

'Decisions have insisted that the new work be taken as bona fide permanent employment with no intent to return to the struck employer after the dispute ends, (thus) . . . the labor dispute (has been) abandoned by the employee upon accepting new employment. . . .' Id.

Although courts have never announced adherence to the 'purge' doctrine by name, its principle has become law in many jurisdictions.

Justice Traynor in his opinion for the court in Mark Hopkins, Inc. v. California Employment Comm'n, 24 Cal.2d 744, 151 P.2d 229, set forth the following principles which are applicable here:

'The termination of a claimant's disqualification by subsequent employment thus depends on whether it breaks the continuity of the claimant's unemployment and the causal connection between his unemployment and the trade dispute. Such employment must be bona fide and not a device to circumvent the statute. . . . It must sever completely the relation between the striking employee and his former employer. The strike itself simply suspends the employer-employee relationship but does not terminate it. . . . Mere temporary or casual work does not sever this relationship for it does not effectively replace the former employment. . . . Only permanent full-time employment can terminate the disqualification. If bona fide, it completely replaces the claimant's former employment, terminating whatever relation existed between the claimant and his former employer.' 151 P.2d at 231-232.

The New Jersey Court of Appeals and Errors qualified the new employment necessary to 'purge' the employee of the labor dispute disqualification in Bergen Point Iron Works v. Board of Review, 137 N.J.L. 685, 61 A.2d 267. The identical language of the phrase in question in our statute, namely, 'at which he is or was last employed,' was embodied in the New Jersey statute. The proper construction and application of the statute was before the court which held at p. 268 of 61 A.2d:

'We are satisfied that a proper construction and application of (statute cited) compels the conclusion that if Bonar accepted his employment at the Constable Hook Shipyard as permanent in nature and without any intent to return ultimately to the Bergen Point Iron Works, his subsequent unemployment was not 'due to' the labor dispute at the Bergen Point Iron Works. . . .'

Unemployment compensation was denied in Gentile v. Director of Division of Employment Security, 329 Mass. 500, 109 N.E.2d 140. The court stated at 109 N.E.2d at 141:

'It necessarily follows that such intermittent employment that the claimant had, from time to time during the strike was merely temporary employment, for in no way did they indicate to the employer or the union that there was any intention on their part to terminate their employment relationship with Reed and Prince (the struck employer). This intermittent work was of a temporary nature and apparently was used as a stop-gap until such time as the strike was settled and the employees could return to work with Reed and Prince. . . . Therefore their unemployment is still due to a stoppage of work which exists because of a labor dispute at the establishment of Reed and Prince.'

See also Bruley v. Florida Industrial Comm'n, 101 So.2d 22 (Fla.App.); Huck v. Industrial Commission, 361 S.W.2d 332 (Mo.App.1962).

The case with a fact situation that is the most similar to the case at hand is Oluschak v. Unemployment Compensation Board of Review, 192 Pa.Super. 255, 159 A.2d 750. In that case as in the one before this Court, an employee became unemployed by reason of a strike at Westinghouse Electric, his place of employment and had obtained employment with another employer until he was laid off. When asked about his intent to sever his employment at Westinghouse Electric, or resign from his job there, he replied: 'I said I would stay if the job was dependable because with the bonus, it would be the same as I was getting and I said if I made out, I would stay there.' Considering this evidence, the Pennsylvania Court held at 159 A.2d 754-755:

'The board was justified in refusing to accept the claimant's ambiguous statement that 'he would stay if the job was dependable' as evidence of a severance of employment from Westinghouse, especially when by so doing, he ...