State, by Davis, v. Ruthbell Coal Co.
| Citation | 56 S.E.2d 549,133 W.Va. 319 |
| Decision Date | 01 November 1949 |
| Docket Number | CC754. |
| Parties | STATE, by DAVIS, Director of Unemployment Compensation, v. RUTHBELL COAL CO. |
| Court | Supreme Court of West Virginia |
Submitted Oct. 5, 1949.
Rehearing Denied Dec. 19, 1949.
Syllabus by the Court.
1. Where the director of unemployment compensation impleads, in a notice of motion for judgment proceeding, an employer to recover unemployment contribution payments, alleged to be overdue and delinquent under the unemployment compensation statute, Acts of the Legislature, Second Extraordinary Session, 1936, Chapter 1, as amended, the defendant-employer files a counter-affidavit and a special plea denying liability and asserting by counterclaim a refund for allegedly illegal overpayment of contribution payments collected from and paid by the employer, the counterclaim is not an action or suit against the State within the purview of Article VI, Section 35, of the Constitution of West Virginia.
2. Where the State or a direct governmental agency thereof institutes an action at law or a notice of motion for judgment proceeding against a citizen, Article VI, Section 35, of the West Virginia Constitution, furnishes no defense to a counterclaim growing out of the same transaction as the claim pleaded.
3. Where an employee of an employer, subject to the provisions of the unemployment compensation statute, Acts of the Legislature, Second Extraordinary Session, 1936 Chapter 1, having no disagreement with the employer as to hours, wages or working conditions, becomes unemployed because he refrains from going through a picket line maintained against the employer's plant by members of a labor union of which the employee is not a member, which action of the employee was not influenced by the employer and was not for the purpose of furthering the cause of those maintaining the picket line, such employee is an 'individual' within the meaning of Subsection (8), Section 4, Article 6, Chapter 130, Acts of the Legislature, Regular Session, 1945, who, without disqualification, 'has left work voluntarily for good cause not attributable to the employer' and benefits paid to such employee covering the period of unemployment are not chargeable to the employer's account.
Leo Loeb, Charleston, Franklin W. Kern, Charleston, for plaintiff.
Charles H. Haden, Morgantown, for defendant.
C. S. Davis, director of unemployment compensation, filed this notice of motion for judgment proceeding in the Circuit Court of Kanawha County against the Ruthbell Coal Company, a corporation. The circuit court certified to this Court its rulings in sustaining the plaintiff's amended demurrer to defendant's amended special plea as to four of the seven grounds of demurrer and in overruling the demurrer as to the remaining three grounds.
On April 16, 1948, the plaintiff filed its notice of motion for judgment against the defendant in the Circuit Court of Kanawha County, together with a statement of account and affidavit attached, seeking to recover from the defendant, an employer under the provisions of the unemployment compensation statute (Acts of the Legislature, Second Extraordinary Session, 1936, Chapter 1, as amended), the amount of $3,680.55, coverning alleged delinquent contribution payments to the unemployment fund, required under said unemployment act, from October 1 through December 31, 1947, with interest thereon.
At the risk of being prolix, we think that a proper consideration of this case requires the statement of the matters alleged in defendant's amended special plea in extenso, as follows:
The defendant, Ruthbell Coal Company operates two coal mines in Preston County, employing approximately two hundred and eighty men, who are members of an independent union which had a contract with defendant employer, governing wages, hours and working conditions. During the period of April 8, through and including May 13, 1946, the mines of defendant coal company were not operated because defendant's employees refused to cross a picket line set up by members of the United Mine Workers of America, who had come by motor caravan from neighborning counties, where they were on strike, to defendant's mines early in the morning of April 8, 1946, though the United Mine Workers of America had no contract with defendant, and defendant's employees were not affiliated with the organization in any way. The motor caravan approached the mines of defendant, and parked directly across from the tipple and the entry thereto. It is alleged that the occupants of the caravan prevented defendant's employees from entering the mines to work; that there was no dispute of any kind between defendant and its employees as to wages, hours or working conditions; and, though both the defendant and members of the independent union asked the local law enforcement authorities and the Circuit Court of Preston County for protection, they received none.
It is further alleged that, as a result of the picketing, defendant's mines were not operated from April 8, through and including May 13, 1946, although throughout that period defendant kept its mines ready for operation and continuously fire-bossed, and defendant had plenty of orders to keep the mines in continuous operation. Further, it is alleged that had it not been for the picketing, defendant's employees would have gone to work and defendant's mines would have been operated every day during the period of the picketing.
The amended special plea further alleges that defendant's individual employees filed claims for unemployment benefits under the unemployment statute, Chapter 1, Acts of the Legislature, Second Extraordinary Session, 1936, as amended, but the Kingwood office held up the claims pending a ruling from the plaintiff's office in Charleston.
The amended special plea further alleges that 'On June 6, 1946, upon instructions from the plaintiff and upon assurances from the plaintiff that any benefits paid out to claimants for said period would not be charged to defendant's account, the defendant, Ruthbell Coal Company, filed loss of work reports as to the men so working for it as of April 8, 1946, which loss of work reports state on their face that the reason for the men not working was 'Mines Closed by U. M. W. Pickets', meaning the pickets of the United Mine Workers of America'; and that on the basis of the filing of these loss of work reports, benefits were paid to the defendant's employees in the amount of $15,068.47; that under the provisions of Subsection (8), Section 4, Article 6, Chapter 130, Acts of the Legislature, Regular Session, 1945, the unemployment benefits so paid out were improperly and illegally charged to the account of defendant, since the benefits were paid out without any disqualification to the individuals who had left work voluntarily for good cause not attributable to the defendant, Ruthbell Coal Company; that upon receipt of knowledge of such improper and illegal charge defendant made timely protest against the same in accordance with Regulation XV of the Regulations of the Director, 1945, issued by the director of unemployment compensation and made application for a review and redetermination of the amount of the charge and for a refund thereof.
It is further alleged that as a result of such illegal charge the defendant has been assigned by the director a contribution merit rate for 1947 of 2.4%; whereas, if the benefits had not been charged, defendant would have been entitled to have been assigned a contribution merit rate of only 1.4% for the year 1947; that defendant made all quarterly compensation reports to plaintiff, in accordance with law, and paid under protest all contribution payments for the first three quarters of 1947 at the rate of 2.4% of its payroll, which payments total $12,244.50; and that had defendant been assigned an experience merit rate for that year of 1.4% to which it was entitled, the charge would have been $9,689.60, instead of $12,244.50; and, therefore, defendant is entitled to a refund of $2,544.90, instead of being indebted to plaintiff in the claimed amount of $3,680.55; but the special plea alleges that notwithstanding the defendant was entitled thereto, the refund so claimed was refused by plaintiff.
Before setting out the several questions raised on the circuit court's certificate, we quote Subsection (8), Section 4, Article 6, Chapter 130, Acts of the Legislature, Regular Session, 1945, heretofore referred to in the amended special plea:
'For the purposes of this section an employer's account shall not be charged under any of the following conditions: (1) When benefits are paid without any disqualification to an individual who has left work voluntarily for good cause not attributable to the employer.'
On this certificate the circuit judge certifies the following questions:
1. Is the defense set up by the defendant in its amended special plea in the nature of an original suit against the plaintiff, from which it is immune under Section 35 of Article VI of the Constitution of the State of West Virginia?
2. Is the Circuit Court of Kanawha County without jurisdiction to entertain the said amended special plea, for the reason that defendant's remedy in the premises was by appeal or appeals under the provisions of Article 7, Chapter 1, Acts of the Legislature, Second Extraordinary Session, 1936, as amended by Acts of the Legislature 1937, 1939, 1943, and 1945, Chapters 100, 134, 76, and 130, respectively?
3. Was the eligibility of defendant's employees for benefits without disqualification under Chapter 1, Acts of the Legislature, Second Extraordinary Session, 1936, contestable only under the provisions of Article 7, Chapter 1, Acts of the Legislature, Second Extraordinary Session, ...
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