Worcester Telegram Pub. Co. v. Director of Division of Employment Sec.

• Decision Date: 19 May 1964
• Citation: 198 N.E.2d 892,347 Mass. 505
• Parties: WORCESTER TELEGRAM PUBLISHING CO. Inc. v. DIRECTOR OF the DIVISION OF EMPLOYMENT SECURITY et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 892

198 N.E.2d 892

347 Mass. 505

WORCESTER TELEGRAM PUBLISHING CO. Inc. v.DIRECTOR OF the DIVISION OF EMPLOYMENT SECURITY et al.

Supreme Judicial Court of Massachusetts, Worcester.

Argued April 6, 1964.

Decided May 19, 1964.

Arthur J. Flamm, Boston (Robert M. Segal, Boston, with him) for Cecil T. Gallant and others, claimants.

William H. Lewis, Jr., Asst. Atty. Gen., for the Director of Division of Employment Security.

James S. Gratton, Worcester, for Worcester Telegram Publishing Co., Inc.

Before WILKINS, C. J., and SPALDING, WHITTEMORE, CUTTER and REARDON, JJ.

CUTTER, Justice.

The claimants, union members, had been employed in the composing room of the Worcester Telegram.On November 29, 1957, they commenced a strike after the union and the Telegram had failed to make a new collective bargaining agreement.The Telegram continued publication, replaced the strikers, and by February 15, 1958, was again in normal production.Its general manager testified that there was no prospect that the strikers would be rehired, although it appeared that they were available for work.

During the period, February 14, 1958, to April 3, 1958, various strikers filed claims for unemployment benefits.The director allowed benefits beginning with the week of February 16, 1958.The Telegram sought review.SeeG.L. c. 151A §§ 39, 40.

On August 28, 1958, the board of review affirmed the director's decision.It rejected any contention that the striking employees left their employment without cause attributable to the employing unit 'because the employees, among the demands presented to management, demanded objectives that were illegal under both Massachusetts and Federal laws,' and held that c. 151A did not give to the board 'jurisdiction to go into the merits of labor disputes for the purpose of placing the blame * * * in order to determine whether * * * the employees are entitled to benefits.'The board also took the view that the striking employees did not become 'employees of the union'(and thus cease to be 'in unemployment') merely because they received strike benefits from the treasurer of the international union from a special fund to which the employees had contributed.

The Telegram sought review (seec. 151A, § 42, as amended through St.1954, c. 681, § 12) of the board's decision in the District Court.The judge remanded the case to the board of review (seeG.L. c. 30A, § 14) to 'determine whether * * * the strike involved an unlawful labor dispute.'The board of review, after a further hearing, reaffirmed its original determination.The judge thereupon examined 'the evidence, and guided by * * * International Typographical Union v. National Labor Relations Bd., 365 U.S. 705[81 S.Ct. 855, 6 L.Ed.2d 36]¹ * * * [ruled] that the strike was * * * 'an unlawful labor dispute."Purporting to act on the authority of Howard Bros. Mfg. Co. v. Director of the Div. of Employment Security, 333 Mass. 244, 130 N.E.2d 108, the judge reversed the board's decision.The claimants and the director appealed.The judge has filed a very full report to this court.Two principal issues are presented: (1) Is the board required by G.L. c. 151A and the precedent of the Howard Bros. Mfg. Co. case to determine whether the claimants' strike was a violation of the National Labor Relations Act?(2) Did the receipt of strike benefits disqualify the claimants for employment security benefits?

1.The first issue depends largely upon the provisions of G.L. c. 151A, § 25, pertinent provisions of which appear in the margin.²Section 25 prohibited the payment of unemployment benefits to a claimant in any week in which the claimant's unemployment was found to be 'due to a stoppage of work which exists because of a labor dispute at the * * * establishment' where the claimant was last employed (subject to exceptions not here relevant).The claimants, accordingly, do not argue that they were entitled to unemployment benefits while they were on strike prior to the termination of the 'stoppage of work.'SeeAdomaitis v. Director of the Div. of Employment Security, 334 Mass. 520, 522-525, 136 N.E.2d 259.Instead the claimants suggest that they did not terminate their employment by striking and that (seeMengel v. Justices of Superior Court, 313 Mass. 238, 242, 47 N.E.2d 3)they remained employees until they were replaced and 'substantially normal production' was resumed about February 15, 1958.Then, they say, the 'stoppage of work' came to an end, and they became entitled to benefits.

The Telegram, on the other hand, takes the position that the claimants left their work 'without good cause attributable to the [Telegram as] employing unit' and that they are prevented by G.L. c. 151A, § 25(e)(1), see fn. 2, supra, from receiving the benefits sought.The Telegram relies principally on the Howard Bros. Mfg. Co. case.There employees had gone on strike in violation of the provisions of a collective bargaining agreement which provided (p. 246 of 333 Mass., p. 109 of 130 N.E.2d) that 'there shall be no suspension of work on account of such difference,' if differences should arise between the employer and the union, and that, in the absence of settlement procedures, the dispute should be referred to the United States Conciliation Service, 'whose decision shall be final and binding on both parties.'Because the Howard company found it necessary to curtail production, conferences were held.The employees preferred that the management put into operation whichever of three curtailment plans it chose.When management made a choice, all the employees met on a Saturday and agreed not to report for work on the following Monday under the proposed curtailment plan.On the following Thursday, the company notified the employees who failed to report for work that they were removed from the payroll.After reciting the provisions of § 25(e), this court said (pp. 247-248 of 333 Mass., p. 110 of 130 N.E.2d), 'All of the claimants voluntarily left their work by striking in violation of their contract.They could have continued to work on the reduced schedule.If this was unsatisfactory * * * they could have sought arbitration * * *.Or they might have become entitled to benefits for partial unemployment under § 29(b) * * *.Since the claimants left their work while substantial work * * * remained * * * and in violation of their contract, they left 'without good cause attributable to the employing unit * * *.'No wrongful conduct on the part of the employing unit is shown.'³

Because it has now been established (after review, see fn. 1, by the Supreme Court of the United States) that the strike against the Telegram was unlawful, the Telegram argues that the present case falls within the principle of the Howard Bros. Mfg. Co. case, which was decided before the enactment of St.1958, c. 677(see fn. 2, supra).The director and the claimants reply in effect (1) that the Howard Bros. Mfg. Co. case is distinguishable because that case involved a breach of a contract not to strike, whereas in the present case there was no contract at all, and (2) that c. 151A does not require the board to determine as a condition precedent to paying benefits to permanently displaced strikers that the strike was not unlawful as in violation of the National Labor Relations Act.Such an interpretation of the statute, it is said, would involve the board, in the case of an employer subject to the National Labor Relations Act, in adjudicating the same issues which Congress has committed to the National Labor Relations Board.Consequently, regardless of whether the premption doctrine (seeGarner v. Teamsters, Chauffeurs & Helpers Local Union No. 776[A.F.L.], 346 U.S. 485, 490-491, 74 S.Ct. 161, 98 L.Ed. 228) is strictly applicable, much the same risk of confusing and conflicting Federal and State adjudications would exist which the premption doctrine was intended to avoid.

Certainly, the present case does not involve any violation of a 'no strike' contract clause, as a matter of State law, as did the Howard Bros. Mfg. Co. case.⁴We have here a case where the alleged unlawfulness of the strike rests, not upon breach of contract, but upon the circumstance that an evenly divided Supreme Court of the United States, 365 U.S. 705, 81 S.Ct. 855, 6 L.Ed. 36, without discussion, has upheld a decision of the Court of Appeals that a 'strike to obtain the 'foreman clause" was not permissible.The Court of Appeals(278 F.2d 6, 11-12) upheld the National Labor Relations Board's view that 'by insisting upon this clause the [u]nions refused to bargain in good faith and that by striking in support of their insistence upon the clause the [u]nions had undertaken to restrain or coerce the employers in the selection of their representatives * * * in violation of § 8(b)(1)(B) of the [National Labor Relations] Act.'The court concluded (p. 12) that there were also violations of § 8(b)(2) and of § 8(b)(3).

The Telegram argues that there must be imported into c. 151A, § 25(e)(1), the language of G.L. c. 149, § 20C(e), as amended through St.1950, c. 452, § 2, defining the term 'unlawful labor dispute' as including any controversy arising out of a demand that an employer commit an 'unfair labor practice * * * in violation of * * * the National Labor Relations Act.'Although the definition of 'labor dispute' in G.L. c. 149, § 20C(c), as amended through St.1950, c. 452, § 2, comports generally with the ordinary understanding of that term, we are not persuaded that there is incorporated in c. 151A, § 25(e)(1), by reference the more technical definition of the term 'unlawful labor dispute' found in c. 149, § 20C(e).Not only is this latter term found in another chapter of the General Laws, enacted for another purpose, but also serious practical difficulties would be encountered in using that technical definition under c. 151A, § 25(e)(1), in determining whether an employee had 'left his work * * * without good cause...