Scott v. Smith

• Decision Date: 21 December 1962
• Docket Number: Nos. 10268-10301,10392-10394,s. 10268-10301
• Citation: 376 P.2d 733,141 Mont. 230
• Parties: Calvin B. SCOTT et al., Claimants and Respondents, v. Chadwick H. SMITH, Paul McClure, Albert Root, as members, and the Unemployment Compensation Commission of the State of Montana, Defendants and Appellants, and The Anaconda Company, a Corporation, and to whomsoever was the employer of the claimant upon which employment his claim was made for benefits, Defendants in the District Court.
• Court: Montana Supreme Court

Page 733

376 P.2d 733

141 Mont. 230

Calvin B. SCOTT et al., Claimants and Respondents, v. Chadwick H. SMITH, Paul McClure, Albert Root, as members and the Unemployment Compensation Commission of the State of Montana, Defendants and Appellants, and The Anaconda Company, a Corporation, and to whomsoever was the employer of the claimant upon which employment his claim was made for benefits Defendants in the District Court.

Nos. 10268-10301, 10392-10394.

Supreme Court of Montana.

Submitted March 30, 1962.

Decided Dec. 4, 1962.

Rehearing Denied Dec. 21, 1962.

Charles V. Huppe, (argued orally), Helena, Moody Brickett, Butte, R. V. Bottomly, and R. W. Gabriel, Great Falls, for claimants and respondents.

Chadwick H. Smith, (argued orally), Helena, Donald D. MacPherson, and Edward C. Schroeter, Helena, for defendants and appellants.

R. Lewis Brown, Jr., and John Frankovich, Butte, for defendants in District Court.

JAMES T. HARRISON, Chief Justice.

These cases are consolidated appeals by the Unemployment Compensation Commission of the State of Montana, from judgments made and entered in district courts of the State of Montana, granting unemployment compensation benefits to the respondents. In each case the Unemployment Compensation Commission had denied such benefits and these orders were reversed in the district courts.

It is undisputed that in each case the respondent was a member of the International Union of Mine, Mill and Smelter Workers, belonging to a local in either Great Falls or Butte. Each respondent worked for the Anaconda Company, either in Great Falls or Butte prior to, or on the 18th day of August 1959. On August 19, 1959, the Union called a strike which caused a stoppage of work in Great Falls and Butte, and the labor dispute continued until February 16, 1960.

During the strike each respondent, save one, worked at some other employment for a period of time and whenever such other employment ceased he filed a claim for unemployment compensation benefits on the basis of such other employment. When the strike ended each respondent was called to return to work on a seniority basis, and each did in fact return to work.

Each respondent was initially found to be eligible for benefits by the Commission but was held to be disqualified by reason of the statute hereafter quoted.

The specifications of error cited by the appellant raise two issues: (1) whether the Anaconda Company was the last employer within the intent of section 87-106(d), R.C.M.1947, and (2) whether the respondent's total unemployment was due to the stoppage of work at the Anaconda Company as defined in section 87-149(a), R.C.M.1947.

Section 87-106(d), R.C.M.1947, before amendment in 1961, provided:

'An individual shall be disqualified for benefits----

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'(d) For any week with respect to which the commission finds that his total unemployment is due to a stoppage of work which exists because of a labor dispute at the factory, establishment, or other premises at which he is or was last employed, provided that this subsection shall not apply if it is shown to the satisfaction of the commission that----

'(1) He is not participating in or financing or directly interested in the labor dispute which caused the stoppage of work; and

'(2) He does not belong to a grade or class of workers of which immediately before the commencement of the stoppage, there were members employed at the premises at which the stoppage occurs, any of whom are participating in or financing or directly interested in the dispute;

'Provided, that if in any case separate branches of work which are commonly conducted as separate businesses in separate premises are conducted in separate departments of the same premises, each such department shall, for the purposes of this subsection, be deemed to be a separate factory, establishment, or other premises; provided, further, that if the commission, upon investigation, shall find that such labor dispute is caused by the failure or refusal of any employer to conform to the provisions of any law of the state of Montana or of the United States pertaining to collective bargaining, hours, wages or other conditions of work, such labor dispute shall not render the workers ineligible for benefits.'

Section 87-149(a), R.C.M.1947, before amendment in 1961, provided:

'Total unemployment: (1) An individual shall be deemed 'totally unemployed' in any week during which he performed no services and with respect to which no wages are payable to him. (2) An individual's week of unemployment shall be deemed to commence only after his registration at an employment office, except as the commission may by regulation otherwise prescribe. (3) As used in this subsection the term 'wages' shall include only that part of remuneration for odd jobs or subsidiary work, or both, which is in excess of seven ($7.00) dollars in any one week, and the term 'services' shall not include that part of odd jobs or subsidiary work, or both, for which remuneration equal to or less than seven ($7.00) dollars per week is payable, or for one (1) day's work not exceeding eight (8) hours, whichever is greater.'

The district judges who presided in these various causes heard many cases and since certain facts and exhibits applied to every case, counsel by agreement, and to avoid repetition, did not repeat such matters in each case and stipulated on oral argument that this court may consider all the appeal records as one in reaching its decision.

The Unemployment Compensation Commission on May 1, 1953, unanimously adopted what it called Official Interpretation No. 74 to serve as a guide in the consideration of claims arising by virtue of a work stoppage. It provided for consideration of the following factors:

(a) The intentions of the employee in accepting such subsequent employment;

(b) The length of time for which he is so employed;

(c) The amount of pay as compared with his former wages; and

(d) His intentions with regard to returning to his former employment when the stoppage of work caused by the labor dispute ends.

On January 8, 1960, and while the work stoppage here involved was in effect, the Unemployment Compensation Commission unanimously adopted its Official Interpretation No. 95, which set up the following factors to serve as guides:

(a) The types of work performed by the claimant at the struck plant;

(b) The rate of pay received by the claimant at the struck plant immediately prior to the labor dispute;

(c) The number of years of seniority accumulated by the claimant at the struck plant, and total length of time employed;

(d) Nature of the work performed for the subsequent employer;

(e) Length of time for which he was subsequently employed;

(f) The rate of pay received in subsequent employment;

(g) Whether or not the claimant has or would be willing to surrender his seniority rights at the struck plant to continue his subsequent employment;

(h) Whether or not there existed an express or implied agreement between the subsequent employer and the claimant regarding the tenure of his employment; and

(i) The claimant's intentions with regard to returning to his former employment when the stoppage of work which caused the labor dispute ends.

There appears to be little difference in effect between the two Interpretations, other than No. 95 is more detailed than No. 74. The Commission, applying these guidelines determined in every case that the claimant's subsequent employment was temporary or stop-gap in nature and did not sever the employer-employee relationship. By reason of such finding each claimant was held to be in the employment of the Anaconda Company which firm would be the employee's 'last employer' within the statute.

Judicial review of decisions of the Unemployment Compensation Commission is provided in section 87-108, R.C.M.1947. Sub-section (d) of such section provides:

'(d) Court review. Within ten days after the decision of the commission has become final, any party aggrieved thereby may secure judicial review thereof by commencing an action in the district court of the county in which said party resides against the commission for the review of its decision, in which action any other party to the proceeding before the commission shall be made a defendant. In such action, a petition which need not be verified, but which shall state the grounds upon which a review is sought, shall be served upon a member of the commission or upon such person as the commission may designate and such service shall be deemed completed service on all parties, but there shall be left with the party so served as many copies of the petition as there are defendants and the commission shall forthwith mail one such copy to each such defendant. With its answer, the commission shall certify and file with said court all documents and papers and a transcript of all testimony taken in the matter, together with its findings of fact and decision therein. The commission may also in its discretion, certify to such court questions of law involved in any decision by it. In any judicial proceeding under this section, the findings of the commission as to the facts, if supported by evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of said court shall be confined to questions of law. Such action, and the questions so certified, shall be heard in a summary manner and shall be given precedence over all other civil cases except cases arising under the workmen's compensation law of this state. An appeal may be taken from the decision of the said district court to the supreme court of Montana in the same manner, but not inconsistent with the provisions of this act, as is provided in civil cases. It shall not be necessary, in any judicial proceeding under this section, to enter exceptions to the rulings of the commission and no bond shall be required for entering such appeal. Upon the final determination of such judicial...