Roberts v. Gatson

• Citation: 392 S.E.2d 204,182 W.Va. 764
• Decision Date: 23 February 1990
• Docket Number: No. 19359,19359
• Court: West Virginia Supreme Court
• Parties: David Allen ROBERTS v. Cathy S. GATSON, Clerk of the Circuit Court of Kanawha County; the Board of Review of the West Virginia Dept. of Employment Security; Richard E. Tyson, as Chairman; J.K. Chase, Jr., and C.C. Elmore, Jr., as Members; Adna Thomas as Commissioner; and PPG Industries, Inc.

Page 204

392 S.E.2d 204

182 W.Va. 764

David Allen ROBERTS v. Cathy S. GATSON, Clerk of the Circuit Court of Kanawha

County; the Board of Review of the West Virginia Dept. of

Employment Security; Richard E. Tyson, as Chairman; J.K.

Chase, Jr., and C.C. Elmore, Jr., as Members; Adna Thomas

as Commissioner; and PPG Industries, Inc.

No. 19359.

Supreme Court of Appeals of West Virginia.

Feb. 23, 1990.

Concurring and Dissenting Opinion by Justice McHUGH April 30, 1990.

Syllabus by the Court

1. W.Va.Code, 21A-6-3(4) (1984), disqualifies employees from receiving unemployment compensation benefits if they are involved in "a work stoppage incident to a labor dispute," unless they can satisfy one of three statutory exceptions: (1) the employees are "required to accept wages, hours or conditions of employment substantially less favorable than those prevailing for similar work in the locality"; (2) the employees "are denied the right of collective bargaining under generally prevailing conditions"; or (3) "an employer shuts down his plant or operation or dismisses his employees in order to force wage reduction, changes in hours or working conditions."

2. A refusal to engage in the collective bargaining process or to negotiate on those mandatory subjects that traditionally form the basis of the collective bargaining agreement so frustrates the process as to constitute a denial of the right of collective bargaining under W.Va.Code, 21A-6-3(4) (1984).

3. A refusal to sign a written agreement which has been duly negotiated by the parties would constitute a denial of the right of collective bargaining under W.Va.Code, 21A-6-3(4) (1984), because such refusal is a negation of the bargaining process.

4. In order to constitute a denial of the right of collective bargaining under W.Va.Code, 21A-6-3(4) (1984), the failure to furnish requested information must be shown to relate to a mandatory subject or collective bargaining. Moreover, the information requested must be so essential that the collective bargaining process will be frustrated without it. Finally, it is appropriate to consider whether the employer has a bona fide reason for the failure to disclose.

5. In order to constitute a denial of collective bargaining under W.Va.Code, 21A-6-3(4) (1984), the events complained of ordinarily must be connected with the collective bargaining negotiations.

6. The company's last offer before the work stoppage is the relevant starting point for determining if the employees are required to accept wages, hours, and conditions of employment substantially less favorable than those prevailing for similar work in the locality under W.Va.Code, 21A-6-3(4) (1984).

7. Where there are other similar places of employment in the locality, their wages, hours, and conditions of employment must be compared to determine if the employer's last offer is substantially less favorable than prevailing conditions in the locality.

Patrick S. Cassidy, O'Brien, Cassidy & Gallagher, L.C., Wheeling, G. Charles Hughes, G. Charles Hughes, L.C., Moundsville, for David Allen Roberts.

Larry W. Blalock, Al Anthony George, Jackson & Kelly, Charleston, for PPG Industries.

MILLER, Justice:

When the collective bargaining agreement (CBA) between PPG Industries, Inc. (PPG), and Local No. 45 of the International Chemical Workers' Union (Union) expired on August 31, 1986, approximately 600 employees went on strike. The employees filed timely applications for unemployment benefits, which were ultimately denied by the Board of Review of the West Virginia Department of Employment Security..

                [182 W.Va. 767]   This denial was affirmed by the Circuit Court of Kanawha County.  The employees appeal
                

The parties do not dispute that the employees' eligibility for unemployment compensation benefits is controlled by W.Va.Code, 21A-6-3(4) (1984). This section disqualifies employees from receiving unemployment compensation benefits if they are involved in "a work stoppage incident to a labor dispute," unless they can satisfy one of three statutory exceptions: (1) the employees are "required to accept wages, hours or conditions of employment substantially less favorable than those prevailing for similar work in the locality"; (2) the employees "are denied the right of collective bargaining under generally prevailing conditions"; or (3) "an employer shuts down his plant or operation or dismisses his employees in order to force wage reduction, changes in hours or working conditions." ¹

The controversy in this case is whether the employees meet either of the first two exceptions. The employees assert that the contract terms offered by PPG at the expiration of the CBA were less favorable than the old contract terms, and were substantially less favorable than those prevailing for similar work in the locality. The employees further allege that PPG denied them their right to collective bargaining under generally prevailing conditions. We first address the latter claim.

I. DENIAL OF COLLECTIVE BARGAINING

A. General Guidelines

We observe initially that the parties are unable to present any decision by this Court which explains the meaning of the phrase "denied the right of collective bargaining under generally prevailing conditions" contained in W.Va.Code, 21A-6-3(4). The Union argues that we should consider certain unfair labor practice charges that were filed under Section 8(a)(5) of the National Labor Relations Act (NLRA), 29 U.S.C. § 158(a)(5) (1974). This provision makes it an unfair labor practice for an employer "to refuse to bargain collectively with the representatives of his employees[.]" PPG responds that there was no outright refusal to bargain. It also asserts that the Union's filing of several unfair labor practices against PPG involving isolated issues does not constitute a denial of collective bargaining under W.Va.Code, 21A-6-3(4).

In the past, we have looked to the federal courts' interpretation of the NLRA for guidance in defining the statutory terminology in our unemployment compensation statute. We find the federal courts' interpretation of the NLRA useful in defining terms in our unemployment act because our statute is designed to provide coverage for workers who are fired as a result of a labor dispute and who also meet certain standards. Our act, by using the phrase "denied the right of collective bargaining," invites an obvious reference to federal labor law provisions concerning the duty to bargain collectively and the failure to do so.

In Miners in Gen. Group v. Hix, 123 W.Va. 637, 17 S.E.2d 810 (1941), overruled on other grounds, Lee-Norse Co. v. Rutledge, 170 W.Va. 162, 291 S.E.2d 477 (1982), we construed the term "labor dispute" in our state unemployment compensation statute by looking at its definition in "We are not bound by the definition of a labor dispute contained in the Federal statutes, but these definitions are at least persuasive of what should be the definition of such a dispute, and are not out of line with the general and common acceptation of the meaning of the term. Until a better definition is found, or there is some substantial reason for a finding that our legislature had in mind a different meaning to be attached thereto, there would seem to be no impropriety in our accepting these existing definitions in the determination of what was then meant."

                the NLRA [182 W.Va. 768] and the Norris-LaGuardia Act. 2  As we explained in Hix, 123 W.Va. at 646, 17 S.E.2d at 815
                

Other jurisdictions have also adopted the definitions contained in a federal labor statute when construing a provision of an unemployment compensation statute, particularly where the term "labor dispute" is used and has not been defined in the statute. E.g., Adams v. District Unemployment Compensation Bd., 414 A.2d 830 (D.C.App.1980); Inter-Island Resorts, Ltd. v. Akahane, 46 Haw. 140, 377 P.2d 715 (1962); Dallas Fuel Co. v. Horne, 230 Iowa 1148, 300 N.W. 303 (1941); Johnson v. Kentucky Unemployment Ins. Comm'n, 367 S.W.2d 253 (Ky.1963). Cf. Campos v. California Employment Dev. Dep't, 132 Cal.App.3d 961, 183 Cal.Rptr. 637 (1982) (Department of Labor's interpretation of phrase "new work" in federal unemployment tax statute is entitled to great weight by state court interpreting same terms in state unemployment compensation statute); Adkins v. Indiana Employment Sec. Div., 117 Ind.App. 132, 70 N.E.2d 31 (1946) (when defining term "labor dispute" in unemployment compensation statute, court will give term the same meaning as is defined in state anti-injunction act). See Annot., 63 A.L.R.3d 88 § 6 (1975 & Supp.1989).

Thus, we believe it is appropriate for this Court to look to the NLRA for guidance in interpreting the phrase "denied the right of collective bargaining" contained in W.Va.Code, 21A-6-3(4). Under Section 8(d) of the NLRA, 29 U.S.C. § 158(d), "to bargain collectively" is defined as follows:

"For the purposes of this section, to bargain collectively is the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotiation of an agreement, or any question arising thereunder, and the execution of a written contract incorporating any agreement reached if requested by either party, but such obligation does not compel either party to agree to a proposal or require the making of a concession[.]"

In determining whether an unlawful refusal to bargain has occurred, the federal courts usually probe the conduct of the parties for evidence of the presence or absence of "good faith." ³ In Allied Chem. & Alkali Workers of Am., Local Union No. 1 v. Pittsburgh Plate Glass Co., 404 "Section 8(d) of the Act, of course, does not immutably fix a list of subjects for mandatory bargaining.... But it does establish a limitation against which proposed topics must be measured. In general terms, the limitation...