Westinghouse Broadcasting Co., Inc. v. Director of Division of Employment Sec.

• Decision Date: 08 May 1979
• Citation: 378 Mass. 51,389 N.E.2d 410
• Parties: WESTINGHOUSE BROADCASTING CO., INC. v. DIRECTOR OF the DIVISION OF EMPLOYMENT SECURITY et al. 1
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 410

389 N.E.2d 410

378 Mass. 51

WESTINGHOUSE BROADCASTING CO., INC. v. DIRECTOR OF the DIVISION OF EMPLOYMENT SECURITY et al.¹

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Feb. 8, 1979.

Decided May 8, 1979.

George C. Caner, Jr. (H. Reed Witherby, Boston, with him), for plaintiff.

Joseph G. Sandulli, Boston, for Bruce W. Balcom & others.

Frank J. Scharaffa, Asst. Atty. Gen. (Craig M. Bell, law student intern, with him), for the Director of the Division of Employment Sec.

Before HENNESSEY, C. J., and QUIRICO, BRAUCHER, KAPLAN and WILKINS, JJ.

QUIRICO, Justice.

Sixty-nine employees of Westinghouse Broadcasting Company's Boston radio and television stations, WBZ, WBZ-FM, and WBZ-TV, applied for and received unemployment compensation benefits for one or more weeks between March 6 and July 11, 1976, during which time they were locked out of their jobs by their employer. Westinghouse appealed to the board of review of the Division of Employment Security (board) claiming that these employees (the claimants) were ineligible for benefits under G.L. c. 151A, § 25(B ), which disqualifies a claimant whose "unemployment is due to a stoppage of work which exists because of a labor dispute at the factory, establishment or other premises at which he was last employed . . . ." G.L. c. 151A, § 25(B ), as amended by St.1964, c. 355.

A majority of the board found there was no "stoppage of work" during the weeks in question, and hence no disqualification for benefits; a judge of the Municipal Court of the Brighton District affirmed. Both Westinghouse and the individual claimants filed claims of appeal to this court; we uphold the decision of the board.

The claimants in this case are broadcast technicians and news photographers who work at WBZ radio or television stations and are represented for collective bargaining purposes by the International Brotherhood of Electrical Workers, IBEW, Local No. 1228. On October 31 and November 30, 1975, the contracts between Westinghouse and Local No. 1228 covering these employees expired, and negotiations toward a new contract commenced. At approximately the same time, Westinghouse began training some fifteen or twenty other employees to perform the duties normally performed by members of Local No. 1228.

After a number of meetings between union and management representatives, contract negotiations reached an impasse. On March 6, 1976, Westinghouse notified all its bargaining unit employees by letter of its intention to continue operating without their services after midnight of that date. After this lockout, Westinghouse continued broadcasting operations by relying on the previously trained employees, on personnel brought in from other Westinghouse stations around the country, and on approximately thirty newly hired temporary employees to perform the work formerly done by the locked out employees. The board found that Westinghouse continued broadcasting after the lockout "to the same extent as prior to that date, except for very short periods of time when there were power failures," and that it continued to meet all the requirements placed on it by the Federal Communications Commission. Although recognizing that "the normal duties of management personnel and other employees" were "done on a reduced basis" because of the need to fill in for the locked out employees, the board concluded that there was no "substantial stoppage of work."

1. Westinghouse advances two main lines of argument in support of its position that the board erred: first, that the board applied the wrong legal standard for determining when there is a "stoppage of work," and second, that even under the board's standard, the evidence required the finding of a stoppage as a matter of law.

(a) We address the question of the proper legal standard first. Every State unemployment compensation statute contains some form of disqualification for workers who are out of work due to a labor dispute, but the precise terms of that disqualification vary. The original unemployment compensation statute in Massachusetts disqualified claimants whose "unemployment is directly due to a strike, lockout or other trade dispute still in active progress" (St.1935, c. 479, § 5). However, in 1937 that section was amended by St.1937, c. 421, § 1, to its present wording disqualifying a claimant whose unemployment is due to "a Stoppage of work which exists because of a labor dispute" (emphasis added). This "stoppage of work" language was taken from the suggested Model Federal Draft Bill of 1936, which in turn was modeled on the British National Unemployment Insurance Act, 1935, 25 & 26 Geo. 5, c. 8. See Lewis, The "Stoppage of Work" Concept in Labor Dispute Disqualification Jurisprudence, 45 J.Urb.L. 319, 322 (1967). It is the language adopted by the majority of States.

The meaning of this phrase "stoppage of work" has been the subject of litigation in almost every jurisdiction operating under it. The initial question is whether "stoppage" refers to the Operations of an employer, or the work of the claimant Employees. The vast majority of States, including Massachusetts, have long settled that the phrase "stoppage of work" "refers to the effect upon the employer's operations produced by the labor dispute . . . . It does not refer to the cessation of work by the individual employee or employees . . . if those leaving work are immediately replaced, or if the dispute does not otherwise interfere with production or operation and these are not diminished, there is no stoppage of work and hence no disqualification." General Elec. Co. v. Director of the Div. of Employment Security, 349 Mass. 358, 363 & n.4, 208 N.E.2d 234, 237 (1965); quoting from Magner v. Kinney, 141 Neb. 122, 129-131, 2 N.W.2d 689 (1942). ² Only one State, in an opinion much criticized by commentators and other courts, has concluded to the contrary. Board of Review v. Mid-Continent Petroleum Corp., 193 Okla. 36, 38, 141 P.2d 69 (1943).

Westinghouse argues, however, that this judicial construction of the phrase "stoppage of work" is inconsistent with the definition adopted by the decisions of the British Umpires (analogous to our board of review) who were charged with construing the "stoppage of work" language in the British statute on which our statute is based. Even assuming, arguendo, that this were true, we do not feel bound to upset our settled construction, and to ignore or reject that of a large number of other American jurisdictions, because of a possibly different reading of the same language in certain decision of the British Umpires forty and fifty years ago. We believe that the proper inquiry for the board should be, as it was in this case, whether the employer's operations were substantially curtailed as the result of a labor dispute.

(b) Westinghouse argues that even under this standard, the board was required in this case to find that there was a "stoppage of work" as a matter of law. To prevail on this ground, the employer must carry the heavy burden of demonstrating that there is no substantial evidence on the record adequate to support the decision of the board. G.L. c. 30A, § 14(7). Keough v. Director of the Div. of Employment Security, 370 Mass. 1, 3, 344 N.E.2d 894 (1976). Westinghouse points to evidence on the record showing that replacement or "scab" photographers were blocked in their efforts to film certain newsworthy events, and evidence that much work normally to be performed by the employees who were assigned to fill in for the locked out claimants went unperformed, and it argues that this was proof that the situation at WBZ, WBZ-FM, and WBZ-TV amounted to a "stoppage of work." The director, on the other hand, relies on the evidence that personnel were trained, hired or shifted to fill the jobs of locked out employees, that the stations continued broadcasting without interruption, and that there was no evidence of loss of revenue or reduction in the number of commercials broadcast as demonstrating that there was no substantial "stoppage of work." The question of how much disruption of normal operations is necessary to constitute a "stoppage of work" is of course a matter of degree. Although most jurisdictions seem to require a "substantial curtailment" of normal work, see Mountain States Tel. & Tel. Co. v. Sakrison, 71 Ariz. 219, 225, 225 P.2d 707 (1950), Monsanto Chem. Co. v....