Totorica v. Western Equipment Co.

• Decision Date: 04 May 1965
• Docket Number: No. 9553,9553
• Citation: 401 P.2d 817,88 Idaho 534
• Parties: Teodoro TOTORICA, Claimant-Respondent, v. WESTERN EQUIPMENT CO., Defendant-Appellant, and Employment Security Agency, Defendant-Respondent.
• Court: Idaho Supreme Court

Page 817

401 P.2d 817

88 Idaho 534

Teodoro TOTORICA, Claimant-Respondent, v. WESTERN EQUIPMENT CO., Defendant-Appellant, and Employment Security Agency, Defendant-Respondent.

No. 9553.

Supreme Court of Idaho.

May 4, 1965.

Eli A. Weston and Richard E. Weston, Boise, for appellant.

Frank H. Powell, counsel for Employment Security Agency, Boise, for respondent.

McFADDEN, Justice.

This appeal presents a question that has not provisously been before this Court for decision and involves the application of I.C. § 72-1366(j) to a claimant who is not working by reason of a strike which involved his employer. All parties agree that the strike involved was a 'labor dispute' as referred to in the subsection of the statute.

Claimant, Teodoro Totorica, had been employed by the appellant Western Equipment Company, herein referred to as 'the company', in its shop as an equipment steam cleaner and painter. Claimant was a member of a union that was engaged in negotiations with the company concerning a labor contract. The negotiations were unsuccessful, and at a meeting of the union a strike was called. Following notice to the company, the shop employees struck the plant on October 2, 1963. The strike continued for about six weeks. The day after the strike began, claimant was notified by a letter from an Attorney representing the company, he could have his job back if he returned to work immediately. Claimant did not reply to this letter nor did he return to work. Three weeks later, the company informed claimant's union that claimant and another employee had been replaced as of October 22; which information was communicated to claimant. On approximately October 10, the company commenced hiring new employees to replace the 16 employees on strike, and by October 15, the company had hired approximately nine new men.

On November 1, 1963, claimant filed his initial claim for benefits under the Employment Security law which claim was denied. On appeal from this determination the Appeals Examiner of the Employment Security Agency reversed the initial determination, holding that the discontinuance of work by the claimant was not a severance of the employment relationship, and thus, he could not be held to have left his employment voluntarily without good cause as provided by I.C. § 72-1366(f). ¹ The Appeals Examiner further held that from and after October 2, 1963, the day of the strike, there was a 'stoppage of work' which existed because of a labor dispute and hence by reason of I.C. § 72-1366(j) ¹, claimant was ineligible for benefits during the work stoppage. However, the Appeals Examiner found that this work stoppage terminated on October 15, 1963, and that claimant was eligible for benefits after that date.

The company appealed the Appeals Examiner's determination to the Industrial Accident Board, which by order affirmed the previous determination and this appeal was taken from the Board's order. In this appeal the company first claims the Board erred in interpreting 'stoppage of work' as used in I.C. § 72-1366(f) as applying to a stoppage of work in the employer's plant rather than a cessation of work by the employee-claimant.

The Board interpreted and applied 'stoppage of work', in the same manner as did the Appeals Examiner, who stated, 'The phrase 'stoppage of work' is to be interpreted as meaning a stoppage of an employer's operation rather than the cessation of the worker's labors'. In the Board's conclusions of law it is stated:

'That a substantial work stoppage existed at the plant where the normal employment relationship occurred, * * *. That from and after October 15, 1963, the work stoppage terminated and the employer returned to substantially normal operation but the labor dispute did not necessarily terminate at that time. That the claimant, after October 15, 1963, was not unemployed 'due to a stoppage of work which exists because of a labor dispute', but was unemployed due to a labor dispute only; therefore, the claimant was not rendered ineligible for benefits under I.C. 72-1366(j).'

The company asserts that this interpretation is incorrect, and in support of its contention cites the cases of Board of Review v. Mid-Continent Petroleum Corp., 193 Okl. 36, 141 P.2d 69, (1943), and Miners in General Group v. Hix, 123 W.Va. 637, 17 S.E.2d 810, (1941). The Supreme Court of Oklahoma in the Mid-Continent Petroleum case, supra, stated '* * * (that) the word 'work' ordinarily refers to or comprehends the activities of the workman, not the operation of a factory.' In the West Virginia case of Miners, etc., v. Hix, supra, cited by the Oklahoma Court in the Mid-Continent Petroleum case, it is stated: ² 'The statute quoted above applies to the individual worker, and, generally speaking, a 'labor dispute' can only exist between the individual workers and their employer.' That court did not attempt to interpret the phrase 'stoppage of work', for the issue before the court was whether a labor dispute existed after the termination of a contract with the union.

The respondent agency, on the other hand, urges that the phrase 'stoppage of work' has reference to the stoppage of work in the employers establishment, and not by reason of the individual work of the employee being in a state of cessation by reason of the strike, and cites the following: Cumberland and Allegheny Gas Company v. Hatcher, 130 S.E.2d 115 (W.Va.1963); Erie Resistor Corp. v. Unemployment Comp. Bd. of Rev., 194 Pa.Super. 307, 167 A.2d 321 (1961); Monsanto Chemical Company v. Thornbrough, 229 Ark. 362, 314 S.W.2d 493 (1958); Producers Produce Co. v. Industrial Commission, 365 Mo. 996, 291 S.W.2d 166 (1956); Robert S. Abbott Publishing Co. v. Annunzio, 414 Ill. 559, 112 N.E.2d 101 (1953); Ablondi v. Board of Review, 8 N.J.Super. 71, 73 A.2d 262 (1950); M. A. Ferst, Limited v. Huiet, 78 Ga.App. 855, 52 S.E.2d 336 (1949); Carnegie-Illinois Steel Corp. v. Review Board, Etc., 117 Ind.App. 379, 72 N.E.2d 662 (1947); Sakrison v. Pierce, 66 Ariz. 162, 185 P.2d 528, 173 A.L.R. 480 (1947); Lawrence Baking Co. v. Michigan Unemployment Comp. Comm., 308 Mich. 198, 13 N.W.2d 260, 154 A.L.R. 660 (1944); Magner v. Kinney, 141 Neb. 122, 2 N.W.2d 689 (1942); In re Steelman, 219 N.C. 306, 13 S.E.2d 544 (1941).

In Monsanto Chemical Company v. Thornbrough, supra, the Supreme Court of that state was faced with an issue similar to the one in the instant case. There the court stated:

'The issue turns upon what is meant by the phrase, 'a stoppage of work.' These words appear in the unemployment acts of many other states and have been frequently construed. It could be argued that the language refers to a cessation of work on the part of the employee, in which case the phrase would be synonymous with unemployment. That construction was in fact adopted in Oklahoma, but there the rule was later changed by an amendment to the statute.

'Elsewhere it has been pointed out that the Oklahoma view makes the reference to a stoppage of work meaningless, for the statutory sentence has already mentioned unemployment and presupposes the existence of that condition. See Williams, 'The Labor Dispute Disqualification,' 8 Vanderbilt L.Rev. 338; Sakrison v. Pierce, 66 Ariz. 162, 185 P.2d 528, 173 A.L.R. 480. Consequently the view is now generally accepted that the stoppage of work means a cessation of business activity at the employer's establishment rather than unemployment on the part of the applicant for benefits. The authorities were reviewed in Robert S. Abbott Pub. Co. v. Annunzio, 414 Ill. 559, 112 N.E.2d 101, where the court observed that the majority interpretation is followed in nineteen states, while the minority rule has been applied administratively in Colorado and judicially in Oklahoma.'

In Robert S. Abbott Pub. Co. v. Annunzio, cited in the foregoing quotation, supra, the Supreme Court of Illinois stated:

'The term 'stoppage of work' as used in the statute and in the various decisions of this court seems to clearly refer to the stoppage of work of the plant or particular department of the plant and not to the individual unemployment of the worker or workers. The provisions of section 7(d) are a substantial re-enactment of the English National Insurance Act of 1911, and the language of this section has received a settled construction by the English Authorities charged with the administration of the English act prior to the adoption of it by Illinois. Under the British interpretation of the word 'stoppage,' the individual is disqualified for benefits if his unemployment is due to a trade dispute so long as the job which he held continues to be vacant.'

Appellant, admitting that the cases relied upon by the respondent agency, present a view contrary to that urged by it, points to a dissimilarity of the statutes involved in those cases from I.C. § 72-1366(j). The difference between the Idaho statute and those involved in the other cases is that while the Idaho statute is denying eligibility for benefits for a claimant during any week when his 'unemployment is due to a stoppage of work which exists because of a labor dispute; * * *', the other statutes contained an additional phrase comparable to the following italicized quotation, so as to establish ineligibility for benefits for a claimant during the period when his 'unemployment is due to a stoppage of work which exists because of a labor dispute at the factory, establishment, or other premises, etc., * * *'. Appellant then argues that these additional words limit and refer directly to the phrase 'stoppage of work' and since the Idaho Section of the Statute does not employ such language or make reference to the 'factory, establishment, or employer's premises,' the Idaho legislature in employing the term 'stoppage of work' had reference to the cessation of the employees work, and not to cessation of the employer's business.

Idaho appears to be the only state which does not use the qualifying clause of 'factory,...