Usher v. Department of Indus. Relations

• Decision Date: 11 November 1952
• Docket Number: 6 Div. 380
• Citation: 75 So.2d 159,37 Ala.App. 698
• Parties: Phillip U. USHER v. DEPARTMENT OF INDUSTRIAL RELATIONS.
• Court: Alabama Court of Appeals

Page 159

75 So.2d 159

37 Ala.App. 698

Phillip U. USHER v. DEPARTMENT OF INDUSTRIAL RELATIONS.

6 Div. 380.

Court of Appeals of Alabama.

Nov. 11, 1952.

Rehearing Denied Dec. 9, 1952.

Reversed on Mandate Oct. 19, 1954.

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

J. Eugene Foster and O. J. Goodwyn, Montgomery, for appellee.

White, Bradley, Arant, All & Rose, Burr, McKamy, Moore & Tate and Martin, Turner, Blakey & Bouldin, all of Birmingham, amici curiae.

CARR, Presiding Judge.

This is an appeal by the claimant, Phillip U. Usher, from a judgment denying to him unemployment compensation.

In the court below the trial judge made a special finding of facts as follows:

'The Court, of course, finds to be true those statements of fact contained in the stipulation between the parties which, in due course, should appear on the several pages at the beginning of the testimony in the cause, and also that stipulation between the parties which should, in due course, appear near the close of the testimony of the witness, Bob Rogers. The Court further finds from the testimony in the case that the United Steel Workers of America, affiliated with the C. I. O., was the bargaining agent, during all times involved in these cases, for and in behalf of Local Unions Numbers 3662, 1733 and 2210. The number of employees of the Tennessee Coal, Iron & Railroad Company who were in the Railroad Transportation Department, who were members of these three unions and the number who were not members are shown in one of the stipulations. As further shown by the first stipulation, as it will appear in the transcript, there were other employees of this Company in the Railroad Transportation Department, who were members of other unions not connected with or associated with United Steel Workers of America and C. I. O. Moreover, there were still other employees, as shown in the said stipulation, who were not members of any union. In addition, there were other local unions of the United Steel Workers of America whose members were employees of the Tennessee Coal, Iron & Railroad Company and engaged in various phases of the Company's manufacturing processes. The contracts between the Tennessee Coal, Iron & Railroad Company on the one hand and the United Steel Workers of America on the other hand, having to do with the terms and conditions of employment of the members of these several unions, that is, the unions which were local unions of United Steel Workers of America, affiliated with the C. I. O., expired on July 15, 1949. Negotiations had been in progress for thirty days before that time in and effort to work out the terms of a new contract. These negotiations failed and a strike had been called for July 15, 1949. This strike was deferred for sixty days, probably at the request of the President of the United States, and was again deferred another fifteen days and was finally fixed for the time and date of 12:01 A.M., on October 1st, 1949. All efforts to reach an agreement failed, and on September 30, 1949, the Tennessee Coal, Iron & Railroad Company was actively arranging its affairs in anticipation of what appeared to be an inevitable strike, beginning at midnight of that night. It mined no further iron ore after 7:00 A.M. of that morning. During the day of September 30th and night of that same date, its furnaces were being banked, its properties were being made secure, and notices were being given to the employees on the general subject of the closing of operations beginning on October 1st, 1949. The notices that went out to the workers in the Railroad Transportation Department were given, as appears to have been a regular thing in that Department, in this general type of language: 'Your job is abolished,' or 'All jobs are abolished.' The claimant, Usher, was given notice about the middle of the afternoon of September 30, 1949, to the general effect that his job had been abolished. Usher was a member of the Brotherhood of Locomotive Firemen and Enginemen, not a C. I. O. Union, and not affiliated with United Steel Workers of America. There was no controversy at that time between the Tennessee Coal, Iron & Railroad Company 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 his Union take part in any strike on that occasion. The claimant, Ross, was not a member of any union at the time in question. He was notified of abolishment of runs in the Railroad Transportation Department of the Company at 10:30 A.M. on October 1st after the strike began at 12:01 A.M. of that same date--the notification being about ten and a half hours after the strike began. There was no controversy between Ross and the defendant about wages or any other terms of conditions of employment. There was no controversy between him and his employer of any sort or kind. There was no labor dispute as between him on the one hand and his employer on the other hand. Both Ross and Usher on the date of September 30, 1949, and October 1st, 1949, were railroad engineers.

'The strike of the several unions affiliated with the United Steel Workers of America and C. I. O. occurred as scheduled at 12:01 A.M., October 1st, 1949, and the strike was not settled until November 13, 1949, The Tennessee Coal, Iron & Railroad Company did not attempt to operate during the strike and substantially all of its employees were out of work during that period with the exception of certain employees whom the striking unions had agreed should not be affected, such as would be reasonably required for preserving the property and for performing similar or related work. At the conclusion of the strike, in reasonably short time, operations were resumed and the men, including these two claimants, returned to work.

'The testimony shows that for the last ten years at least, the Tennessee Coal, Iron & Railroad Company, where strikes of this kind have occurred, has not attempted to continue its operations and to induce employees to cross picket lines. The evidence shows in this particular instance that there were picket lines at the three gates in Ensley, which were the entrances to the Transportation Department and other departments as well, beginning at the time of the strike, and lasting throughout the strike.

'This Court is reasonably satisfied from the evidence that the closing of the Railroad Transportation Department of the Company was indubitably caused by the strike. It was in this Department that each of these two claimants was employed. The closing of this particular department began during the afternoon prior to the midnight at which the strike became effective, but there was then in being a labor dispute between the Company and a large number of its employees, and this dispute culminated in the strike referred to hereinabove.

'Under modern conditions with respect to unionism and the feeling of workers generally on the subject of crossing picket lines, and in doing other things which would tend to break a strike, and taking into consideration the number of men in the Railroad Transportation Department who were members of the unions which initiated the strike and prosecuted it, the Court is reasonably satisfied and finds as a fact that it would not have been practical or reasonable that the Company should have attempted to continue its operations. Under all the circumstances and conditions the Court is reasonably satisfied that it was not feasible or practical, or wise that the Company should attempt further to operate its Railroad Transportation Department after the beginning of the strike.'

Our approach to a review of this factual finding is controlled by well-established rules. Department of Industrial Relations v. Tomlinson, 251 Ala. 144, 36 So.2d 496; Alabama Mills, Inc. v. Brand, 251 Ala. 643, 36 So.2d 574.

The applicable law first appeared in the General Acts of Alabama of 1935, pp. 957-958, in this verbiage:

'Section 6. Benefits Eligibility Conditions. * * * (d) During Trade Disputes. An employee shall not be eligible for benefits 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.'

This section was based on a comparable provision in the unemployment compensation law of Wisconsin, the only state to adopt an unemployment compensation law prior to our state.

The original draft of the act did not attempt nor purport to define the term 'labor dispute' as it appeared in the above section.

The legislature, by Act No. 497, General Acts of 1939, p. 721, amended the pertinent law by defining a 'labor dispute.' The amended section is as follows:

'Disqualification for benefits.--An individual shall be disqualified for benefits 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, 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.' Title 26, § 214, subd. A.

It should be noted that the term 'an employee', as it appeared in the original draft, was changed by the amendment to 'an individual.'

There has been no subsequent amendment to the 1939 act.

The indicated definition of a 'labor dispute' is in the same language as it is found in the Norris-LaGuardia Act of Congress, 29 U.S.C.A. § 113(c), except that the word 'tenure', appearing in our state statute, is not in the act of Co...