Magner v. Kinney

• Decision Date: 06 March 1942
• Docket Number: 31214.
• Citation: 2 N.W.2d 689,141 Neb. 122
• Parties: MAGNER et al. v. KINNEY.
• Court: Nebraska Supreme Court

2 N.W.2d 689

141 Neb. 122

MAGNER et al. v. KINNEY.

No. 31214.

Supreme Court of Nebraska

March 6, 1942

Syllabus by the Court.

1. "A strike is cessation of work by employees in an effort to get for the employees more desirable terms. A lockout is a cessation of the furnishing of work to employees in an effort to get for the employer more desirable terms." Iron Molders' Union v. Allis-Chalmers Co., 7 Cir., 166 F. 45 20 L.R.A., N.S., 315.

2. Under the facts disclosed by the record, the cessation of work by the employees of the appellant herein in September 1938, was the result of a strike as thus defined.

3. The term "stoppage of work," as employed in our unemployment compensation law, having been substantially adopted from the English National Insurance Act of 1911 and having received a settled construction by the English authorities charged with the administration of the English act long prior to the adoption thereof by this state, the rule of construction applicable at the present time is that a state by adopting a statute of another state adopts the construction which has been given the statute so adopted by such other state; and in the absence of judicial decision determining the construction and effect of such foreign statute, the practical interpretation given to it by those whose duty it was to apply and administer it affords the best means of ascertaining its true construction; and such construction will be followed, unless it be clear that such officers have misinterpreted it.

4. The technical meaning of the term "stoppage of work," as used in our statute referred to, is a substantial curtailment of work in an employing establishment, not the cessation of work by the claimant or claimants.

5. The facts established by the record disclose that, as a result of a labor dispute which developed into and continued as a strike, a substantial "stoppage of work" in the business of the employer was occasioned, which is effectual to deny claimants unemployment benefits under the terms of our unemployment compensation law.

EBERLY and MESSMORE, JJ., dissenting.

Swarr, May & Royce and James M. Paxson, all of Omaha, for appellant.

David D. Weinberg, of Omaha, for appellees Magner and others.

J. E. Sidner, of Lincoln, for appellee Department of Labor.

Heard before SIMMONS, C. J., EBERLY, PAINE, MESSMORE, and YEAGER, JJ., and FALLOON and ELLIS, District Judges.

ELLIS District Judge.

This is a proceeding under our "Unemployment Compensation Law", Comp.St.Supp.1939, secs. 48-701 to 48-724, inclusive, which will be hereinafter referred to as the "Act," in which the appellees, Frank Magner, Harry H. Snook and C. A. Wolff, seek to obtain unemployment compensation benefits from the department of labor of this state, to be charged against the reserve account of the appellant herein, their former employer. In the district court appellant defended against claimants' demands, insisting that claimants' unemployment was due to their own "stoppage of work" and their own voluntary act of striking because of a labor dispute; that unemployment benefits should be denied by reason of claimants' failure to appeal their original claims for unemployment compensation filed by them on January 3, 1939, which, after due investigation, had been denied on the ground that the claimants' total unemployment was due to stoppage of work which existed because of a labor dispute in the establishment in which they were last employed; also because of claimants' failure and refusal to accept reemployment, and furthermore because of claimants' continued participation in the strike, and the fact that there was still a very considerable and substantial loss of business at the plant of appellant, from which we are asked to infer from the record that it evidenced a stoppage of work in part at least. The trial de novo in the district court for Douglas county on appeal from the order and finding of the "Appeal Tribunal," as provided by the Act, resulted in a decision adverse to appellant herein and from that order this appeal is prosecuted.

In this proceeding the district court adjudged "that no stoppage of work existed on May 8, 1939, the date plaintiffs' claims were filed, because of a labor dispute at the establishment at which plaintiffs were last employed. The court is of the opinion, and so finds, that the term 'stoppage of work,' which appears in subsection (d) of section 48-705, Comp.St.Supp.1939, refers to an existing condition at the former place of employment on the date of the claims and not to the original cause of any claimant's unemployment." The district court set aside the decision of the "Appeal Tribunal" and allowed benefits to the claimants.

It is conceded that, so far as length and terms of employment by defendant Fidelity Storage & Van Company, Inc., are concerned, each of the plaintiffs is entitled to the unemployment benefits under the Act, unless disqualified by the restrictions contained in section 5 of the Act. Comp.St. 1939, sec. 48-705.

But a preliminary to further consideration of the matters presented by this record is the contention on the part of the claimants that we have here a case where the employees are the subjects of a "lockout" by the employer; and the contention on part of the employer that we are here dealing with a "strike" instituted and carried on by these men. It is conceded that claimants are all members of Local No. 554, which is the Truck Drivers' Union.

From the evidence it appears that prior to June, 1938, this union had an existing labor contract covering terms and conditions of employment with the Nebraska Truckers Association, to which the Fidelity Storage & Van Company belonged, and of which the firms and organizations pursuing a similar vocation in Omaha and vicinity were members. Negotiations had been going on between the representatives of the parties to this contract with reference to an extension and modification of this contract and were in progress in June, 1938, at the time that contract, according to its terms, expired. These negotiations continued until September, 1938, at which time the undisputed evidence is that all parties were in accord except as to the issue of the "closed shop" demanded by the union. In these negotiations the local drivers and their union were represented by several individuals. In early September, 1938, these representatives went to Indianapolis and had a conference with Mr. Tobin, head of the International Union, with which Local Union No. 554 was affiliated. From that city a telegram was sent by the representatives of the drivers' union to the Nebraska Truckers Association giving the operators a 42-hour strike notice. The service of this strike notice was a requirement under the terms of the contract between the parties which by its terms expired in June, 1938. The evidence in the record is without substantial contradiction that on or about September 13, 1938, or Monday following the delivery of the Indianapolis telegram, all "union men" then employed by the Fidelity Storage & Van Company, including the three claimants herein, without further individual demand on or protest to their employer, quit their employment and thereafter failed to report for duty as was customary. Upon this occasion claimants were not discharged or directed to remain away from their usual places of employment by their employer. But it also appears that since the date of this cessation of work by its employees the business houses and premises of the Fidelity Storage & Van Company have been continuously picketed by members of Union No. 554, and while claimants herein did not "picket" the business and premises of their former employer, they did participate in the picketing of other organizations against whom this same strike order was directed. Claimants also admit that since the strike order was issued they were paid strike benefits a number of times from their union organization during the continuance of this labor dispute.

The nature of the claim of plaintiffs herein that a "lockout" existed is disclosed by the following testimony of claimant Snook: "To explain that I'll go back to around the first of June of 1938. At that time there was trouble at the Watson Transfer Company and one afternoon Mr. Koller (manager of the Fidelity Storage & Van Company) called the employees on the second floor of the building and he told us (he didn't tell me personally), or rather he told the drivers to put the trucks in the garage and leave them sit there until this thing was settled; that he didn't want his trucks smashed up. I believe those were the words that were used. Then he told us to go home; that's my recollection of it."

This is also testified to by claimant Wolff as follows: "I can't tell you that unless I start back in June, 1938. In June Koller told us to take the trucks in on Friday noon. He said he didn't want his trucks torn up because Watson's had struck. We went down Saturday and Monday mornings, but Koller said nothing doing, and Monday night we had a meeting at the hall. They said they were going to negotiate on a contract for thirty days until about the first of July, but we kept working until the 9th day of September. We weren't working under contract during that time. *** Q. You did continue to work until September, 1938? A. Yes."

The interruption of work in June, 1938, appears to have been for not more than three days and work had been practically continuous thereafter until September. It is obvious that a claim of a "lockout" in September, 1938, based upon what occurred in June, 1938, as the facts relating thereto appear in the evidence in this case, cannot be sustained.

We understand, in labor disputes, to "lockout" is "to withhold employment from (a body...