Usher v. Department of Indus. Relations

• Decision Date: 30 June 1954
• Docket Number: 6 Div. 528
• Citation: 75 So.2d 165,261 Ala. 509
• Parties: In re Phillip U. USHER v. DEPARTMENT OF INDUSTRIAL RELATIONS.
• Court: Alabama Supreme Court

Page 165

75 So.2d 165

261 Ala. 509

In re Phillip U. USHER v. DEPARTMENT OF INDUSTRIAL RELATIONS.

6 Div. 528.

Supreme Court of Alabama.

June 30, 1954.

Rehearing Denied Oct. 7, 1954.

Lange, Simpson, Robinson & Somerville, Birmingham, for petitioner.

J. Eugene Foster, Montgomery, opposed.

White, Bradley, Arant, All & Rose, Burr, McKamy, Moore & Tate, and Martin, Turner, Blakey & Bouldin, Birmingham, amici curiae, in opposition to the petition.

SIMPSON, Justice.

The petitioner Usher suffered involuntary unemployment from September 30, 1949, to November 13, 1949, and unless he was disqualified under the Alabama Unemployment Compensation Act he was entitled to receive benefits. The pertinent section of the act is:

'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 negotiations, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment, regardless of whether the disputants stand in the proximate relation of employer and employee. This definition shall not relate to a dispute between an individual worker and his employer.' § 214, Title 26, 1951 Cum.Supp., Code 1940.

The facts out of which the unemployment arose, as found by the trial court and the Court of Appeals, are as follows: The two claimants, Usher and Ross, were employed as railroad engineers in the railroad transportation department of the Tennessee Coal, Iron and Railroad Company. United Steel Workers of America, affiliated with the CIO, was the bargaining agent for local unions Nos. 3362, 1733, and 2210. These two claimants, as well as other employees of this company in the railroad transportation department, were members of other unions not connected with or associated with the United Steel Workers of America and the CIO. Moreover, there were still other employees who were not members of any union. There were also other local unions of the United Steel workers of America whose members were employees of T.C.I. and engaged in various phases of the company's manufacturing business. The contracts between T.C.I. and United Steel Workers of America having to do with the terms and conditions of employment of the members of the union which were local unions of the United Steel Workers expired on July 15, 1949. Negotiations failing, a strike was called for July 15, 1949. Such strike was deferred and finally fixed for the time and date of 12:01 A.M., October 1, 1949. On September 30, 1949, T.C.I. began arranging its affairs in anticipation of the strike. Notices were given the employees of the closing of operations on October 1, 1949. The claimant Usher was given notice about the middle of the afternoon on September 30, 1949, to the effect that his job had been abolished. Usher was a member of the Brotherhood of Locomotive Firemen and Enginemen, not a CIO union and not affiliated with the United Steel Workers of America. There was no controversy at that time between the T.C.I. and Usher or his union with respect to wages or other terms of employment. Neither Usher nor his union called any strike nor did he or the union take part in any strike on that occasion. Claimant Ross was not a member of any union at the time in question. He was notified of the abolishment of runs in the railroad transportation department of the company at 10:30 A.M. October 1st--ten and one-half hours after the strike had begun. There was no controversy between Ross and T.C.I. about wages or any other terms or conditions of employment. There was no labor dispute as between him and his employer. The strike did in fact take place and was not settled until November 13, 1949. T.C.I. did not attempt to operate during the strike and substantially all of its employees were out of work during that period excepting certain employees whom the striking unions had agreed should not be affected, such as would be reasonably required for protecting the property. For the last ten years the T.C.I. Company, when strikes of this kind had occurred, had not attempted to continue its operations and induce the employees to cross picket lines. There were in fact picket lines lasting throughout the strike at the three gates in Ensley, which were the entrances to the transportation department and other departments. At the conclusion of the strike operations were resumed and the men, including the claimants, returned to work.

The petitioner here, citing Department of Industrial Relations v. Drummond, 30 Ala.App. 78, 1 So.2d 395, 398, contends that where, as instantly, the claimant or his agent or union does not participate in the labor dispute causing the unemployment, he is entitled to receive the benefits. We find the following statement in the majority opinion of the Drummond case, supra, authored by the writer of this opinion when on the Court of Appeals: 'The conclusion is inescapable that the Legislature never intended that one, who has purchased his protection against involuntary unemployment, should be denied those benefits because of a 'labor dispute' in which he was in no way involved and the causes of which unemployment he, his agents or organization were powerless to avert.' The defendant, on the other hand, urges that the above-quoted view expressed by the Court of Appeals in the Drummond case was in the nature of dictum and is not binding. In this the Court of Appeals concurred and so wrote.

The facts in the Drummond case were, briefly: Drummond was an employee of T.C.I. Company. At his place of employment there were also employed members of the United Mine Workers of America. When it became apparent that the T.C.I. Company would not sign a work pending agreement containing certain provisions and that the members of the United Mine Workers of America would not work after March 31, 1939, unless the work pending agreement was executed, the T.C.I. Company posted suspension of operation notices. Drummond was not a member of the striking union and did not participate in the strike, but was idle during the strike. In explanation of the complete shutdown, the vice-president of the employing company stated that experience with previous strikes led them to believe that an attempt to operate would in all probability have led to violence, inasmuch as there were two unions in the coal mines. In the majority opinion of the Drummond case it was first stated that:

'* * * because of the apprehension of the employer company that to allow some employees to work when others (the C.I.O. affiliates) were on strike would result in violence, the appellee was locked out of work by the published notices and close down of the Wylam Mine. This, therefore, was the direct cause of appellee's unemployment and not the 'labor dispute' in which the C.I.O. affiliates were involved. The trial court therefore, in our opinion, correctly held, and this court also finds the fact to be, that appellee's unemployment was not 'directly due to a labor dispute still in active progress in the establishment in which he is or was last employed.''

And continuing, it was next observed:

'True, the origin of the disaffection may have been the trade dispute or disagreement between the employer and the United Mine Workers of America, but to us the conclusion is inescapable that the Legislature never intended that one, who has purchased his protection against involuntary unemployment, should be denied those benefits because of a 'labor dispute' in which he was in no way involved and the causes of which unemployment he, his agents or organization were powerless to avert. To conclude otherwise, it appears to this court, would be to defeat the true and beneficent purposes of the statute and convert that statute into a sham and a mockery with respect to those industrial employees, as appellee, whom it must have been designed to protect against the hazards of enforced unemployment, the causes of which they were helpless to avoid. If such were not so, then a situation could be conceived and easily executed whereby a few persons could accomplish the unemployment of hundreds of innocent victims, entirely faultless in the matter, and thereby deprive them of compensation benefits which they had bought and paid for.'

Thus it is clear that the decision in the Drummond case was based on two distinct grounds, not just the one, viz., that the claimant's unemployment was ruled as not directly due to a labor dispute because of a lockout by the employer.

Where there are two independent reasons given for decision, each is a ruling on the case and neither one is to be considered mere dictum. There is no more reason for calling one ground a real basis for decision than the other. Each is a judgment of the court and of equal validity with the other. Union Pac. R. Co. v. Mason City & Ft. Dodge R. Co., 199 U.S. 160 26 S. Ct. 19, 50 L.Ed. 134; U. S. v. Title Ins. & Tr. Co., 265 U.S. 472, 44 S.Ct. 621, 68 L.Ed. 1110; Armstrong v. Armstrong, 85 Cal.App.2d 482, 193 P.2d 495; Woodward v. Pacific Fruit & Produce Co., 165 Or. 250, 106 P.2d 1043, 131 A.L.R. 832; Coombes v. Getz, 217 Cal. 320, 18 P.2d 939; Jones v. Mutual Creamery Co., 81 Utah 223, 17 P.2d 256, 85 A.L.R. 908. The conclusion is obvious. The above-quoted views expressing the majority opinion of the Court of Appeals in the Drummond case was the judgment of the court and was not, as urged by the defendant and so considered by the Court of Appeals, mere dictum. On certiorari, 241 Ala. 142, 1 So.2d 402, the Supreme Court in the Drummond case, in denying the writ, stated: 'Upon consideration of this cause the conclusion is reached that the majority opinion of the Court of Appeals...