Pickens v. Kinder

• Decision Date: 01 June 1971
• Docket Number: No. 12905,12905
• Citation: 155 W.Va. 121,181 S.E.2d 469
• Parties: Ralph R. PICKENS et al. v. Jack KINDER, Clerk, etc., Board of Review etc., et al. Clement R. Bassett, etc. and FMC Corporation, a Corporation.
• Court: West Virginia Supreme Court

Page 469

181 S.E.2d 469

155 W.Va. 121

Ralph R. PICKENS et al. v. Jack KINDER, Clerk, etc., Board of Review etc., et al Clement R. Bassett, etc. and FMC Corporation, a Corporation.

No. 12905.

Supreme Court of Appeals of West Virginia.

Submitted May 4, 1971.

Decided June 1, 1971.

Syllabus by the Court

1. 'This Court will not consider questions, nonjurisdictional in their nature, not acted upon by the circuit court as an intermediate appellate court.' Point 1, syllabus, Pettry v. C. & O. R.R. Co., 148 W.Va. 443 (135 S.E.2d 729).

2. Unemployment compensation benefits cannot be paid unless the claimants are either totally or partially unemployed as provided for in Code, 21A--6--10 and 11, as amended, and the statute, Code 21A--1--3, as amended, defines total unemployment as follows: '(1) An individual shall be deemed totally unemployed in any week in which such individual is Separated from employment for an employing unit and during which he performs no services and with respect to which no wages are payable to him.' (Emphasis supplied) 'Separated from Employment' is defined in Code, 21A--1--3, as amended, in this manner: "Separated from employment' means, for the purposes of this chapter, the total severance whether by quitting, discharge, or otherwise, of the employer-employee relationship.' Partial unemployment is defined in Code, 21A--1--3, as amended, as follows: '(2) An individual who has not been separated from employment shall be deemed to be partially unemployed in any week in which Due to lack of work he performs no services and with respect to which no wages are payable to him, or in any week in which due to lack of full-time work wages payable to him are less than his weekly benefit amount plus ten dollars.' (Emphasis supplied).

3. Employees who go on strike do not sever their employer-employee relationship, and such relationship continues during the entire time they are on strike and until such tiem as they quit or obtain employment elsewhere, and striking employees who intend to return to their jobs are not totally unemployed where there is no showing of a separation from employment.

4. Where employees voluntary go on strike but work is available at the employer's plant, such employees are not partially unemployed because a strike does not create a Lack of work where work is available to the strikers during the strike.

5. Code, 21A--6--6, as amended, pertaining to suitable work, which reads as follows: 'Notwithstanding any other provisions of this chapter, no work shall be deemed suitable and benefits shall not be denied to an individual, otherwise eligible, for refusing to accept New work under any of the ofllowing conditions: (1) If the position offered is vacant due directly to a strike, lockout, or other labor dispute.', is not applicable to employees on strike at an employer's plant where the employer-employee relationship still exists since the work is not New work as to them. The section is applicable only to strangers to the labor dispute involved or to former employees who had terminated their employment prior to the dispute. (Emphasis supplied).

R. L. Theibert, Charleston, for petitioners.

Jackson, Kelly, Holt & O'Farrell, David D. Johnson, Charleston, W. Va., for respondents.

BERRY, Judge:

This case involves a proceeding upon a writ of certiorari granted by this Court on December 8, 1969, to the Circuit Court of Kanawha County, to review the decision of the Circuit Court of April 11, 1969, in a group case, denying unemployment compensation to the petitioners, Ralph Pickens and others, employees of the FMC Corporation, South Charleston, Kanawha County, West Virginia, a firm engaged in the manufacture of chemical products, for a period of idleness that occurred during a labor dispute at the plant from June 20, 1967 until September 27, 1967. In response to the writ of certiorari provided for in Code, 21A--7--27, as amended, the record of the case was brought to this Court and the case was submitted for decision on May 4, 1971, upon arguments and briefs on behalf of the parties involved. This proceeding hving passed through a series of hearings and appeals before coming to this Court on a writ of certiorari, the initial decision was made by the Deputy Director of the West Virginia Department of Employment Security in which it was held that the claimants or petitioners were eligible for unemployment compensation benefits, but were disqualified for a period of seven weeks with a reduction of six times their respective weekly benefit amounts, under the provisions of Code, 21A--6--3(1), because they left their most recent work voluntarily without good cause involving fault on the part of the employer.

The employer appealed the decision of the deputy and the matter was heard by a trial examiner employed by the Board of Review of the Department of Employment Security to hear appeals from the decisions of the deputy of the department. The trial examiner held on February 6, 1968, after a lengthy hearing, that the claimants, although involved in a labor dispute, were eligible and not disqualified from receiving benefits, because there was no substantial curtailment of the plant's operations and that since the facts brought it within the labor dispute provisions of the statute, Code 21A--6--3(4), as amended, the claimants were not severed from employment and no other type of disqualification should apply and there being no stoppage of work, benefits should not be denied.

The decision of the trial examiner was appealed by the employer to the Board of Review of the West Virginia Department of Employment Security which consists of three members appointed by the Governor of West Virginia. This Board reviewed the decision of the trial examiner and on April 3, 1968, reinstated the decision of the deputy which had held that there was a seven weeks disqualification with reduction of six times the weekly benefit amount for each claimant for the voluntary quitting of work on the part of the claimants without good cause involving fault on the part of the employer.

Both sides appealed the case to the Circuit Court of Kanawha County, which is charged with the duty under the law of deciding unemployment compensation cases on appeal from the board of review from any area of the state. The two appeals were consolidated and heard together in the Circuit Court which held on April 11, 1969, that the claimants were not entitled to any compensation for the period of the strike, because they were neither partially nor totally unemployed. The decision of the Circuit Court based on its written opinion of April 2, 1969, reversed the decision of the board of review and placed its decision upon a ground not theretofore decided by any of the other officials handling the case, either initially or upon appeal, although the trial examiner in reaching his conclusion had hit near the point in stating that there was no severance of employer-employee relationship.

The facts in this case are relatively simple and uncontradicted and the disposition thereof is governed entirely by a matter of law.

Prior to the labor dispute involved in the case at bar, about 700 of the company's employees, mostly hourly workers, were represented in collective bargaining by District 50, United Mine Workers of America, Local Union No. 12625, which later became independent of the mine union. The total employees of the plant numbered about 1050, 350 of whom were salaried, clerical, professional, technical and supervisory employees who did not belong to the union. A collective bargaining agreement was entered into on June 20, 1965, which contained a provision that it could be terminated by 60 days written notice in advance of the expiration date of June 20, 1967, and if it was not so terminated it would automatically be renewed for an additional year.

The union notified the employer by letter dated April 17, 1967, that it was terminating the contract. No notice was given by the employer. The union and the employer then entered into negotiation or bargaining meetings in an attempt to agree on a new contract to replace the old one, but their efforts were ineffective before the expiration date of the contract and it was recognized that a strike by the employees would take place. Apparently, both the union and the employer endeavored to have their contentions contained in the new contract, the union contending for certain benefits for the employees and the employer contending for a provision called 'Maintenance Utilization Program' in order to train workers to do jobs other than those of a specific craft of limited work jurisdiction.

The employer made plans to keep the plant operating during the strike as much as possible in order to avoid the adverse economic effects on the company in connection with a long strike, and the non-union salaried, clerical, professional and supervisory personnel were instructed to take over the production and maintenance work. It was anticipated that the union members would refuse to continue to work after the 6:30 shift on June 20, 1967, and consequently, the non-union employees were sent into the plant about one or one and one-half hour before the deadline of 6:30, when the contract terminated, to begin relieving the union men who were about to leave the plant and to replace the security guards who were also members of the union in order to maintain security of the plant when the strike started. The new shift did not report for work and the plant gates were closed but some of the employees came back into the plant to obtain their clothing and other personal articles. The union began picketing the plant at 6:30 a.m. and continued to do so 24 hours a day for the duration of the strike at all of the seven normally used plant gates, with some of the pickets carrying signs indicating that they were on strike, the signs reading 'No contract no work.'

During the period of the strike, work was available for...