T.R. Miller Mill Co. v. Johns

• Decision Date: 19 January 1954
• Docket Number: 3 Div. 966
• Citation: 75 So.2d 670,37 Ala.App. 477
• Parties: T. R. MILLER MILL COMPANY, Inc. v. Philip T. JOHNS et al.
• Court: Alabama Court of Appeals

Page 670

75 So.2d 670

37 Ala.App. 477

T. R. MILLER MILL COMPANY, Inc. v.Philip T. JOHNS et al.

3 Div. 966.

Court of Appeals of Alabama.

Jan. 19, 1954.

Rehearing Denied Feb. 16, 1954.

McMillan, Caffey & McMillan, Brewton, Caffey, Gallalee & Caffey, Mobile, for appellant.

Flournoy Lovelace, Brewton, for appellees Johns and others.

J. Eugene Foster, Richard S. Brooks, Montgomery, for Department of Industrial Relations.

CARR, Presiding Judge.

This appeal is from a judgment in the court below in favor of three claimants for unemployment compensation.By agreement of counselthese cases were tried jointly and the appeals have been consolidated into one record.

The trial judge rendered an identical judgment in each case, the effect of which was that each of the claimants was disqualified to receive unemployment benefits from March 18, 1952 to June 2, 1952, but was not disqualified to receive such benefits for his weeks of unemployment after June 2, 1952.This was in accord with the decision of the Board of Appeals of the Alabama Department of Industrial Relations.

In the main, there is no material or substantial dispute in the evidence.

The nature of the questions presented for our review requires a rather detailed delineation of the evidence.

Without conforming to the formality of noting quotation marks, we will follow in a general way the statement of the facts as they appear in briefs of counsel.

The three claimants and many others were employees of the T. R. Miller Mill Company.The bargaining agent of the employees was LocalNo. 432 of the International Woodworkers of America.

On April 1, 1950 the employer and the union entered into a contract affecting employment relationships.The pertinent part of the agreement was:

'The term of this agreement, with the exception of wages, shall be for a period of nineteen (19) months commencing April 1, 1950 until November 1, 1951, and from year to year thereafter unless either party serves notice on the other party in writing sixty (60) days prior to the termination date of the agreement of a notice to terminate, revise, or amend this agreement.In case either party serves written notice on the other as provided above, the parties hereto agree to meet within twenty (20) days from the date of notification for the purpose of negotiations on the subject or subjects that may be the basis of such notification or notifications.This contract may be extended by mutual agreement between the Company and the Union.

'The matter of adjustment of wages, either decreases or increases, and the matter of Union Security, may be opened on November 1, 1950 and on May 1, 1951, by either party giving the other party written notice at least sixty (60) days prior to November 1, 1950, and sixty (60) days prior to May 1, 1951.'

The employer was under the Wage Stabilization Law, 50 U.S.C.A.Appendix, § 961 et seq., with respect to paying the maximum wages allowed by the Wage Stabilization Board.From time to time the board had amended its rulings as to wages allowed employees.In the fall of 1951, in accord with this custom, the board ruled that a cost-of-living increase should be made to the T. R. Miller Mill Company's employees in the amount of two cents an hour.

On September 4, 1951 the union committee representing the claimants requested the employer to amend the bargaining agreement.The latter refused to comply with the request.

At a meeting, on October 22, 1951, of the representing parties, the employer agreed to allow the indicated increase.At this time the workers' representatives refused.

Following this meeting and ending May 31, 1952, there were eleven conferences held between the union and employer representatives.These were requested by the former, and at each time checkoff of union dues and a salary increase were demanded by the union and refused by the employer.Some time during these various conferences the mill company proposed to make the hourly wage increase three cents instead of two cents which they had previously offered, but at no time would it agree to the union security phase of the controversy.

At a meeting between the representatives held on March 17, 1952, the employer again offered a three cent hourly raise, but would not offer or agree to any change in the contract regarding union security or union shop.The union agreed to accept the pay raise proposed, provided the mill company would join in with the union in recommending to the Wage Stabilization Board a 15% wage increase.The company representatives countered with the proposal that, if the employees would accept the three cent hourly raise, they would counsel with the union representatives and see if some agreement could be reached, but they refused to join the union in recommending a 15% increase in salaries to the Wage Stabilization Board.

On March 18, 1952, without having given the notice required by the contract or without obtaining a leave of absence, the claimants and many other employees who were union affiliates, left their employment.At this time they gave as a reason for leaving that they were to be engaged in a continuous and prolonged union meeting.

On March 31, 1952 the indicated group went on an active strike and placed picket lines around the mill plant.This condition continued until June 2, 1952.

During the entire time of this cessation of work by the union employees, the mill company continued operating its plant, and gave employment to any former employee who reported for work and whose job had not been already filled by another person.

When the strike was called off, the claimants reported for work, but were advised by the employer that their positions had been previously filled by replacements and there was no available work for them.

Title 26, Sec. 214, as amended, Cum.Supp. Code 1940, p. 215, provides in pertinent parts:

'An individual shall be disqualified for total or partial unemployment:

'A.For any week in which his total or partial unemployment is directly due to a labor dispute still in active progress in the establishment in which he is or was last employed; for the purposes of this section only, the term 'labor dispute' includes any controversy concerning terms, tenure or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment * * *.

'B.If he has left his employment voluntarily without good cause connected with such work.'

It is evincingly clear that our approach to this review must be related to the question of whether or not the claimants left their employment because of a labor dispute in active progress.In other words, if their unemployment was not due to a labor dispute, they left voluntarily without good cause, and they should be denied benefits under subsection B of the statute quoted above.

The appellant--intervenor--takes the position that, by the provisions of the contract of employment set out above, the 'matter of adjustment of wages, either increases or decreases, and the matter of Union Security' could not be taken up by the parties except at designated times and under specified conditions, and that, under the undisputed evidence in the case, these terms and provisions of the agreement were not observed.For this reason, it is urged, the disagreement between the parties which resulted in the unemployment of claimants was not due to a labor dispute within the purview of the applicable statute.

In the case of Department of Industrial Relations v. Stone, 36 Ala.App. 16, 53 So.2d 859, 861, this court held in effect that it is not every dispute relating to labor that comes within the meaning and interpretation of the statute.We said: '* * * it must be a 'bona fide', as opposed to 'mala fide', difference in opinion among the disputants.'

Appellant discusses, with considerable emphasis and reliance, the holding in this case.It is urged that the dispute in question was not 'bona fide' because of the nonobservance of the provisions and conditions of the contract.

Appellees press several positions in an effort to sustain the judgment below.One of these is:

'Parties can, by mutual consent, waive the provisions of a collective bargaining agreement, and this mutual consent can be gathered from the conduct of the parties as well as from any specific agreement.'

We entertain the view that under the evidence in the case there is merit in this position.

This conclusion is decisive of this appeal, and we see no need to go into a discussion of the other questions.

The general rule of instant concern is found in 17 C.J.S., Contracts, § 375, at pages 860 and 861:

'Modification must be made by the contracting parties or someone duly authorized to modify, and one party to a contract cannot alter its terms without the assent of the other parties; the minds of the parties must meet as to the proposed modification; hence a stranger cannot become a party to a contract without the consent of all the existing parties.The fact of agreement may be implied from a course of conduct in accordance with its existence.So, assent may be implied from acts of one party in accordance with the terms of a change proposed by the other; and assent to new terms of performance, even if invalid as a contract, will serve as an estoppel excusing what otherwise would be a default.However, it is not sufficient to show an ambiguous course of dealing from which one party might reasonably infer that the original contract was still in force, and the other that it...