McIntire v. State

• Decision Date: 30 June 1976
• Docket Number: No. 6943,6943
• Citation: 116 N.H. 361,359 A.2d 619
• Parties: Manson McINTIRE et al. v. STATE of New Hampshire et al.
• Court: New Hampshire Supreme Court

Page 619

359 A.2d 619

116 N.H. 361

Manson McINTIRE et al. v. STATE of New Hampshire et al.

No. 6943.

Supreme Court of New Hampshire.

June 30, 1976.

Taylor & Gray, and William J. Hurley, Portsmouth (Alvin E. Taylor, Portsmouth, orally) for the plaintiffs.

Edward F. Smith, Andre J. Barbeau and Michael M. Black, Concord, for defendant State of New Hampshire Department of Employment Security.

Wyman & Bean, Manchester (Arthur E. Bean, Jr., Manchester, orally), for defendant National Gypsum Co.

LAMPRON, Justice.

Appeal by the New Hampshire Department of Employment Security and the employer, National Gypsum Company, from various orders and decrees made by the superior court in hearings on an appeal by about 80 plaintiffs from a denial of unemployment benefits. Their appeal, filed in June 1973, was from a decision of an appeal tribunal of the department upholding a decision of a hearing examiner which denined plaintiffs benefits because work stoppages involved resulted from a labor dispute. RSA 282:4 F (Supp.1975).

Plaintiffs filed a motion to be allowed to file a class appeal and for an immediate hearing 'as claimants are in destitute circumstances'. The Trial Court (Dunfey, J.) ordered that a pilot-case hearing be held on August 21, 1973, on the merits of the issue of whether the work stoppages involved resulted from a 'lockout' or 'because of a labor dispute'. RSA 282:4 F (3) and RSA 282:4 F (Supp.1975). The court further ordered that the decision on that issue shall be binding in any and all other cases in which that is the principal issue raised.

The matter was heard on the set date by Loughlin, J., who found and decreed that the unemployment of the plaintiffs from April 1, 1973, to April 9, 1973, and from April 25, 1973, until they resumed work after an agreement was reached with the employer on September 15, 1973, was due to a lockout and found that they should have received their benefits immediately. The court denied a petition by National Gypsum Company, the employer, to enjoin the department from paying benefits pending a final determination of its appeal to this court. The court further ordered that immediate payments be made to those eligible with respect to the issue of whether or not there was a lockout.

Later the Trial Court (King, J.) on petition of the plaintiffs enjoined the department from deducting from their unemployment compensation otherwise due them the moneys received from the lockout fund of their union during the term of their unemployment. All exceptions of the defendants were reserved and transferred to this court.

The issues on this appeal are as follows: (1) were the work stoppages due solely to a lockout; (2) did the payments from the union lockout fund affect the amount of the unemployment compensation due the plaintiffs; (3) was the department given a fair opportunity for preparation and trial; (4) was competent evidence of the defendants improperly excluded and incompetent evidence of the plaintiffs improperly admitted.

National Gypsum Company operated a plant in Portsmouth manufacturing gypsum wallboard. It had a labor-management contract with Local 88 of the 'United Cement, Lime and Gypsum Workers International Union' which was due to expire at midnight, March 31, 1973. The agreement provided that either party could terminate it by giving written notice to this effect at least 60 days prior to its termination date. The union gave such a notice. On and after March 1, 1973, the parties entered into negotiations on a new contract which was not effectuated until September 15, 1973. When their contract expired on March 31, 1973, the employees offered to work for the company on a day-to-day basis under the same terms. The company did not accept this offer and on March 31, 1973, notified the plaintiffs that as of 12:01 a.m. April 1, 1973, their services were no longer required until further notice. On April 9, the plaintiffs at the request of the company returned to work on a regular basis until April 25 when they were again notified by the company that their services were no longer required. Negotiations continued which led to the new contract. Plaintiffs began returning to work on September 17 and all those available had returned to work by September 24, 1973.

RSA 282:4 (Supp.1975) reads in part as follows: 'Disqualifications for Benefits. An individual shall be disqualified for benefits . . . F. 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 . . . at which he is or was last employed, provided that this subsection shall not apply if it is shown to the satisfaction of the commissioner that . . . (3) The stoppage of work was due solely to a lockout . . ..' A 'labor dispute', not defined in the statute, involves any controversy concerning wages, hours, working conditions or broadly speaking, any controversy arising out of the respective interests of employer and employee. Gorecki v. State, 115 N.H. 120, 122, 335 A.2d 647, 648 (1975). A lockout is a withholding or cessation of furnishing work by an employer to his employees in order to gain a concession from them. Id. at 123, 335 A.2d at 649.

It is clear that a labor dispute existed in this case. However, RSA ch. 282 does not disqualify an employee from receiving benefits in all cases where he becomes unemployed while there is a labor dispute. Rather, it makes him ineligible only if he is out of work because of the labor dispute. Gorecki v. State, 115 N.H. 120, 122, 335 A.2d 647, 648 (1975); Febbi v. Div. of Employment Sec., 35 N.J. 601, 608, 174 A.2d 481, 485 (1961); see Bunny's Waffle Shop v. Cal. Emp. Com, 24 Cal.2d 735, 739-40, 151 P.2d 224, 226 (1944). The fact that the dispute was the motivating cause of the employer's acts does not establish that the dispute is the cause of the claimant's unemployment. If he can prove that his situation is due solely to a lockout he is not disqualified from receiving unemployment benefits. RSA 282:4 F(3). This is in accordance with the policy of the statute which is to 'provide some measure of relief against involuntary unemployment.' Armstrong v. Adams, 113 N.H. 367, 369, 308 A.2d 842, 843 (1973). Whether or not unemployment is truly involuntary is a question of fact for the trial court.

On March 31, by agreement of the parties, negotiations were suspended to allow the union members to attend a meeting where the company's offer of a new contract was to be submitted to the membership by the negotiating committee. The minutes of that meeting, introduced as an exhibit, show that the committee recommended that the proposed contract not be accepted, not to strike, but to work day-by-day and continue negotiations. These recommendations were accepted by the membership on a 'hand vote'. The results of the union meeting were made known to the company when on the same night of March 31 their negotiations resumed. There was evidence that the committee 'inferred' to company officials that they had the right to strike but told them it was their intent to continue negotiations and to continue work on a day-to-day basis. There was also evidence that under the union constitution and bylaws a strike vote must be by secret ballot and that such a vote would be required if a strike was to be called.

As previously stated the union's offer to work on a day-to-day basis under the terms of the old contract was refused and the company notified the plaintiffs that as of 12:01 a.m. April 1 their services would no longer be required. There was evidence by management that if an employee had showed up for work he would not have been allowed to work. The plant...