Jackson v. Review Bd. of Indiana Employment Sec. Division, 20295

• Decision Date: 31 March 1966
• Docket Number: No. 20295,20295
• Citation: 138 Ind.App. 528,215 N.E.2d 355
• Parties: Dorothy J. JACKSON, Rosie Trotter, Irene Beverly, Gladys Hagler, Mable Hightire, Edna Parish, Appellants, v. REVIEW BOARD OF the INDIANA EMPLOYMENT SECURITY DIVISION, Douglas J. Morris, David R. Oliver, and Oscar Alvord, as Members of and as Constituting the Review Board of Indiana Employment Security Division, and Slicks Laundry, Appellees.
• Court: Indiana Appellate Court

Page 355

215 N.E.2d 355

138 Ind.App. 528

Dorothy J. JACKSON, Rosie Trotter, Irene Beverly, Gladys Hagler, Mable Hightire, Edna Parish, Appellants, v. REVIEW BOARD OF the INDIANA EMPLOYMENT SECURITY DIVISION Douglas J. Morris, David R. Oliver, and Oscar Alvord, as Members of and as Constituting the Review Board of Indiana Employment Security Division, and Slicks Laundry Appellees.

No. 20295.

Appellate Court of Indiana, In Banc.

March 31, 1966.

[138 INDAPP 529]

Ralph R. Blume, Nieter, Smith, Blume & Wyneken, Ft. Wayne, for appellant.

Keith Campbell, Deputy Atty. Gen., John J. Dillon, Atty Gen., for appellees.

J. A. Bruggeman, Ft. Wayne, Barrett, Barrett & McNagny, Ft. Wayne, of counsel, for appellee Slicks Laundry.

BIERLY, Judge.

Claimant-appellants variously applied for benefits under the Indiana Employment Security Act on March 9, 1964, to March 25, 1964. These applications were denied and benefit rights were suspended by the local deputy on the ground that the appellants had voluntarily left their work without good cause on June 12, 1963. The determination by the local deputy was affirmed by a referee and the decision was subsequently modified by the Review Board which ruled that the appellants left their work voluntarily without good cause on March 6, 1964, rather than June 12, 1963, and that appellants are disqualified for benefits for the week ending March 7, 1964, and until they have earned ten times their weekly benefit amount in defined employment.

There is no material dispute concerning the factual situation. Appellants were laundry workers and were employed by Slicks Laundry in the City of Fort Wayne, Indiana. Slicks Laundry employed a total of seventy-six (76) such workers.

Local 3017, of the Laundry and Dry Cleaning Workers Union, AFL-CIO, was attempting to organize and be recognized as the collective bargaining agent for the laundry employees, which union had previously been declined recognition. It appears that approximately forty-eight (48) out of seventy-six (76) such workers, normally employed by this firm signed authorization cards with the laundry workers union. On [138 INDAPP 530] June 12, 1963, appellants and forty-one (41) other such workers went on strike and formed a picket line at the employer's premises to induce recognition of Local 3017 as the collective bargaining agent. The strike and all picketing ceased on March 6, 1964, when the employer and Local 3017 entered into a consent election agreement and set the election to be held on June 26, 1964.

John Slick, president of Slicks Laundry, testified that forty-seven (47) of the seventy-six (76) persons normally employed went on strike; that after the strike started he employed forty-seven (47) more people; that there was no interruption in the output and that the operation of the laundry was never down an hour; and that the forty-seven (47) employees were all replaced within a week's time. John Slick also stated that the appellants have not asked him for work during or after the strike, but in any event he said there was nothing available at that time.

Roosevelt Jackson, one of the strikers, testified that he called John Slick after the strike was over and inquired as to whether he would be permitted to go back to work; that he also inquired as to jobs for the other strikers; and that John Slick told him jobs were not available. The appellants were allowed to vote in the consent election held on June 26, 1964, and were designated as 'pickets' and not as employees.

The local deputy in his determination of eligibility concluded that there was no labor dispute, that there was no stoppage of work, and that the appellants left work voluntarily without good cause on June 12, 1963. Upon appeal to the referee of the Indiana Employment Security Division, the referee concluded that:

'It is found that there has been no work stoppage at this employer's premises. No bargaining agent has been established under an election of the employees. The Labor Dispute Section of the Act is not applicable in this instance due to the absence of these factors. In the absence of the claimants having immediate and definite prospects of securing more suitable work, it is held that they left work [138 INDAPP 531] voluntarily and without good cause. There is no showing that the pay of these claimants was reduced at the time they quit their jobs.'

The referee held that the Labor Dispute Section was not applicable due to the absence of the factors of stoppage of work, and that no bargaining agent had been established. Evidently, the referee was of the opinion that a bargaining agent was essential in order to establish a labor dispute.

The Review Board entered Findings and Conclusions as follows:

'1. The claimants' unemployment beginning June 12, 1963, was due to a stoppage or curtailment of work that existed because of a labor dispute at the employer's establishment. Even if the plant was 'never down an hour,' and the 47 striking employees were replaced 'within a week's time,' it is not reasonable that there was not some interruption and curtailment of work for however short a time. It would not have been necessary to replace the 47 strikers, if their absence had been without effect. The claimants participated in an actual strike and they are not subject to benefit penalty under § 1501 of the Act as having voluntarily left their work without good cause on June 12, 1963.

'2. It is not evident the employer permanently replaced the claimant, or that the employer had no work available for the claimants after the strike ended on March 6, 1964.

'3. The claimants made no inquiry of their employer about returning to work, not made any attempt to return to work after March 6, 1964.

'4. The employer never having notified the claimants they were replaced, or that they were discharged, or that he would never take them back, the claimants were not warranted in remaining away from their work after March 6, 1964. Having the right to strike and their strike having ended, it was the responsibility of the claimants to promptly return to their work, and in not returning to their work they voluntarily left it. If the claimants assumed it was useless to even inquire about returning to work, their assumption is not substantiated by the evidence. The instant case is distinguishable from 62--R--29, 36, 70 wherein the claimants presented themselves to their employer for work promptly upon the cessation of the strike, but the employer refused [138 INDAPP 532] to take them back which refusal put the onus for their unemployment upon the employer. The instant case is also distinguishable from those of large industries where, after a long strike, workers have to wait to be recalled until production stages are resumed and the employer is prepared for them to return.

'5. The claimants had the burden of proving that their unemployment after they filed their serveral claims was due to circumstances beyond their control. Not having been actually or constructively discharged, the claimants alternatively left their work voluntarily, with or without 'good cause.' The Review Board finds that, in not returning to their work after March 6, 1964, and in remaining unemployed of their own volition, the claimants each voluntarily left her work as of March 6, 1964, without good cause shown therefor.'

The local deputy and the referee determined that there was not a stoppage of work or a labor dispute, and that appellants left their work voluntarily and without good cause. The Review Board reversed both of these findings and instead thereof found that there was a labor dispute, and a stoppage or curtailment of work. On this basis appellants were denied benefits from June 12, 1963 to March 6, 1964 when the strike ended. Thereafter appellants were denied benefits on the basis that they did not request to return to work, thereby leaving their work voluntarily and without good cause.

Appellants in their brief appear to argue in the alternative two separate propositions. First, appellants assert that they are entitled to the benefits of the Employment Security Act, because while engaged in an authorized strike they were replaced and discharged by their employer and were unemployed for reasons solely within the control of the employer. Second, appellants argue that the Labor Dispute Section (§ 52--1539c, Burns' 1964 Replacement) is not applicable because there was not a stoppage of work resulting from a labor dispute, which is an essential element for ineligibility for benefits within the provisions of this section.

[138 INDAPP 533] The position of the Review Board is that appellants left their work voluntarily at the end of the strike, and during the strike there was a stoppage of work caused by a labor dispute.

At the outset it should be made clear that any question as to the merits of the strike is not germane to this appeal. Our decision is limited to a determination as to whether the appellants are entitled to benefits under the Indiana Employment Security Act. Whether the Act should compensate employees in this position is a matter for the...