Oyler v. Cole

• Decision Date: 10 December 1982
• Docket Number: No. 15433,15433
• Citation: 171 W.Va. 402,299 S.E.2d 13
• Parties: Daniel K. OYLER and Others v. Phyllis J. COLE, Clerk, etc., et al.
• Court: West Virginia Supreme Court

Page 13

299 S.E.2d 13

171 W.Va. 402

Daniel K. OYLER and Others v. Phyllis J. COLE, Clerk, etc., et al.

No. 15433.

Supreme Court of Appeals of West Virginia.

Dec. 10, 1982.

Syllabus by the Court

"Findings of fact by the Board of Review of the West Virginia Department of Employment Security, in an unemployment compensation case, should not be set aside unless such findings are plainly wrong." Syllabus point 1, Kisamore v. Rutledge, 166 W.Va. 675, 276 S.E.2d 821 (1981) (in part).

James M. Haviland & James B. McIntyre, McIntyre, Haviland & Jordan, Charleston, for petitioners.

Forrest H. Roles, Jackson, Kelly, Holt & O'Farrell, Charleston, for respondents.

John M. Kuykendall & James V. Coggin, Jr., Weintraub, DeHart, Robinson, Coggin & Trotter, Memphis, Tenn., for B.F. Shaw.

PER CURIAM:

The sixty nine petitioners in this action were members of two craft unions employed by Benjamin F. Shaw Company, ¹ hereinafter referred to as B.F. Shaw. Petitioners were working on a construction project in Washington, West Virginia, when, on June 1, 1979, the Laborers' Union went on strike and established a picket line at the construction site. Petitioners did not work from June 1, 1979 until June 27, 1979 when the Laborers' picket line was removed, and they claim that they are eligible and qualified for unemployment benefits for this period. We agree, and reverse and remand.

Petitioners applied for unemployment benefits and their claim was referred to an appeal tribunal pursuant to W.Va.Code, 21A-7-4(c) (1972) and W.Va.Code, 21A-7-7 (1972). ² The tribunal received evidence from both parties and, on June 19, 1980, the tribunal found that because petitioners did not cross the Laborers' picket line they were not "available for full time work for which [they were] reasonably fitted by prior training or experience." W.Va.Code, 21A-6-1 (1979). Since availability for work is a prerequisite for eligibility, petitioners were ruled ineligible.

They appealed this ruling to the board of review, as provided by W.Va.Code, 21A-7-9 (1972), and the board examined the record developed before the appeal tribunal. On November 12, 1980, the board ruled that the petitioners had established their availability for work and, hence, were eligible for benefits.

Pursuant to W.Va.Code, 21A-7-17 (1967) B.F. Shaw appealed the ruling of the board of Kanawha County Circuit Court. Upon consideration of the record developed below, the circuit court reversed the board of review and affirmed the decision of the appeal tribunal denying petitioners' eligibility.

Petitioners sought certiorari in this Court as permitted under W.Va.Code, 21A-7-27 (1970), and certiorari was granted. The issue before us is the same one considered at each previous level in this proceeding: Were the petitioners available for work on B.F. Shaw's construction site from June 1 to June 27, 1979?

We note initially that the testimony in this case was remarkably sparse. Three witnesses testified for appellants, of whom only petitioner Oyler testified about the specific construction site which was the subject of the dispute. The other two witnesses for the petitioners were employed by affected union locals, but they offered no evidence about work at the particular site involved.

Lloyd Mace, business manager for Sheetmetal Workers Local 299 testified in general terms about the interdependency of the various crafts at a construction site. He was asked if the Sheetmetal Workers could have performed their work without the support of the striking Laborers. He replied, "[w]ell they couldn't function properly on account of it takes all the crafts to function whenever you're working on a construction project."

Petitioner Oyler testified regarding the interrelationship among crafts employed on a construction site as follows:

"Q. O.K. Is there any other reason why you didn't go to work?

A. Well if I had there was no other crafts there to work with. I have to have supporting crafts to work.

Q. Can you tell the judges, give the judges examples of what you mean by supporting crafts to help you work?

A. Well it takes your Operating Engineers to supply the air to run the tools and to lift equipment and piping which we have to do on a day-to-day basis. Takes electricians to supply welding machine for lighting, whatever, to lighting, which is temporary. It takes Laborers, which put up the picket, sanitary conditions. Well just--you need supporting crafts to operate."

Only one witness testified for B.F. Shaw. Oscar Lard, a craft superintendent employed by B.F. Shaw Company, testified that work was available to petitioners at the site. In anticipation of a picket line, he stated that he had informed some B.F. Shaw employees that work would be available for non-striking crafts throughout any strike by a craft union.

In Hill v. Board of Review, 166 W.Va. 648, 276 S.E.2d 805 and Kisamore v. Rutledge, W.Va., 276 S.E.2d 821, both 1981 cases, we set forth the law applicable to the case sub judice. As we noted in Kisamore "the eligibility and disqualification provisions of the West Virginia Unemployment Compensation law constitute a two-step process to entitlement to unemployment compensation benefits." Kisamore v. Rutledge, 166 W.Va. at 680, 276 S.E.2d at 824. Both steps are important herein. Availability for work is a prerequisite to eligibility under W.Va.Code, 21A-6-1 (1979). Should eligibility be found, the second step would be to determine whether petitioners were disqualified under the labor dispute provision in W.Va.Code, 21A-6-3(4) (1978).

The factual setting in Hill v. Board of Review, 166 W.Va. 648, 276 S.E.2d 805 (1981) was much like the one presented herein. On July 26, 1976, roving pickets established a picket line...