CORNELL, ADM'R, BUREAU OF
UNEMPLOYMENT COMPENSATION,
APPELLEE,
vs.
BAILEY, JR., ET AL.,
APPELLANTS
No. 34064
SUPREME COURT OF OHIO
125 N.E.2d 323, 163 Ohio St. 50, 56 Ohio Op. 50
March 16, 1955, Decided
CERTIFIED by the Court of Appeals for
Scioto County.
HEADNOTE
Unemployment compensation -- Eligibility for benefits --
Section 1345-6, General Code -- Loss of employment due to labor
dispute -- Person leaving employment as participant in labor
dispute -- Or involuntarily without participation -- Ineligible for
benefits.>
SYLLABUS
Under Section 1345-6, General Code (Section 4141.29, Revised Code),
any employee, who leaves or loses his employment as a direct result
of a labor dispute (other than a lockout) at the factory,
establishment, or other premises where he is employed, is
ineligible to serve a waiting period or be paid unemployment
compensation during the continuance of such labor dispute,
regardless of whether such employee left his employment as an
active participant in such labor dispute or lost his employment
involuntarily, without any participation on his part in such
dispute.
This cause concerns the applications of Boyd Bailey, Jr., and 44
others, hereinafter designated claimants, for determination of
benefit rights under the Unemployment Compensation Act, which
applications were allowed. Thereafter, on April 26, 1950, the
Administrator of the Bureau of Unemployment Compensation disallowed
each claim for benefits for the first week of unemployment
occurring during a period beginning March 20, 1950, on the ground
that the unemployment of claimant was caused by a labor dispute in
the establishment in which claimant was employed,> with the
disqualification for benefits to remain in effect as long as such
labor dispute continued.
Each of the claimants duly appealed from the administrator's
determination, and a hearing on all the appeals was conducted by a
referee on August 8, 1950. The referee's decision, dated August 23,
1950, affirmed the administrator's determinations.
On September 2, 1950, claimants filed applications for leave to
institute further appeal and such applications were allowed by the
Board of Review, which board, by a two to one decision, the lawyer
member of the board dissenting, reversed the determination of the
referee and allowed benefit rights to claimants.
The Court of Common Pleas of Scioto County affirmed the decision
of the Board of Review, and, upon appeal by the administrator to
the Court of Appeals for Scioto County, that court reversed the
judgment of the Court of Common Pleas.
The cause is before this court pursuant to Section 6, Article IV
of the Constitution of Ohio, the judges of the Court of Appeals
having certified the record of the case on the ground that the
judgment, upon which they had agreed, is in conflict with a
judgment of the Court of Appeals for Lucas County in the case of
Miller v. Bureau of Unemployment
Compensation, No. 4688 in that court.
Additional facts are stated in the opinion.
COUNSEL
Mr. C. William O'Neill, attorney general,
and Mr. John W. Hardwick, for appellee.
Messrs. Kimble, Schapiro, Stevens &
Harsha, for appellants claimants.
Mr. C. William O'Neill, attorney general,
Mr. Leon L. Wolf and Mr. William A. Banks,
Jr., for appellant Board of Review, Bureau of Unemployment
Compensation.
JUDGES
STEWART, J. WEYGANDT, C. J., MATTHIAS, HART, ZIMMERMAN, BELL and
TAFT, JJ., concur.
AUTHOR: STEWART
OPINION
{*51} The facts in the present case are not in dispute and
are stated as follows as a finding of facts in the decision of the
Board of Review:
"Prior to March 20, 1950, all claimants herein were
{*52} employed by The Gilbert Grocery Company (hereinafter
designated as employer) which operates a wholesale grocery business
in Portsmouth, Ohio. Early in March, 1950, a representative of
Teamsters, Chauffeurs, Warehousemen & Helpers Local No. 134 (A.
F. L.) contacted employer and stated that a majority of employer's
drivers and their helpers had 'signed up' and that said drivers and
helpers were requesting negotiations for the establishment of a
union shop. Employer refused to negotiate, pending certification of
N. L. R. B. that the local was authorized to act as bargaining
agent. On March 17 the union representative again contacted
employer and received the same reply. On March 20, 1950, employer's
drivers and their helpers admittedly went on strike. Thereafter
employer made no attempt to use its trucks or to deliver
merchandise to any of its customers, but did continue to operate on
a 'come and get it' basis, wherein customers called for their
merchandise and hauled it away in their own vehicles.
"Claimants herein were not members of the striking union. They
were not concerned in the dispute between employer and its drivers
and helpers, and did not participate in the labor dispute or
resulting strike in any way. Following the work stoppage by the
drivers they continued to perform their usual and regular work and
in the performance thereof they suffered no interference by the
striking employees. However, lack of normal delivery service caused
a substantial curtailment in employer's business, and after a
period of about ten days business had fallen off to a point where
employer had no further work for claimants herein and released them
from their employment, giving as the reason therefor, lack of work.
However, employer continued to operate on a curtailed basis, with a
skeleton force, throughout the entire period of the drivers'
dispute, which terminated about August {*53} 21, 1950.
Thereafter, normal operations were again resumed, and claimants
were recalled to work as fast as increasing business
warranted."
Subdivision d of Section 1345-6, General Code (122 Ohio Laws,
710), provided in part as follows:
"d. Notwithstanding the provisions of subsection (a) of this
section, no individual may serve a waiting period or be paid
benefits for the duration of any period of unemployment with
respect to which the administrator finds that such individual:
"(1) lost his employment or has left his employment by reason of
a labor dispute (other than a lockout) at the factory,
establishment, or other premises at which he was employed, as long
as such labor dispute continues."
Subdivision C of Section 4141.29, Revised Code, contains this
same provision, and subdivision (a) designates the employees who
are eligible for benefits.
In the majority opinion of the Board of Review it was held that
in order to disqualify claimants it must be determined that there
was a direct causal relationship between the drivers' dispute and
claimants' loss of employment, and that claimants lost their
employment as a result of an intervening cause between the labor
dispute and the loss, to wit, the establishment of a new
operational policy of the employer in his business without the
services of its drivers, i. e., without delivery
service to its customers.
It seems to us that this proposition is completely answered in
the dissenting opinion of the lawyer member of the Board of Review,
wherein it is stated:
"Faced with these facts, the majority attempts to break the
chain by advancing the theory that the lack of work was not due to
the labor dispute but was due to a change in the 'operational
policy' of the employer and this change in policy was an
intervening cause which broke the chain of causation and was the
proximate {*54} cause of the layoff of claimants. Where,
in the record, is there any evidence of any such change of policy?
It is true that, because of the strike, the employer was no longer
able to make deliveries but his failure to do so was the direct
result of the strike and was not an intervening
cause, as suggested in the majority opinion. If a
change of policy was established by the employer, presumably
resulting in a permanent reduction in his staff, why did claimants
contact employer periodically during the strike to inquire about
their jobs, and why did the employer immediately put them back to
work as soon as possible after the strike terminated? The answers
to these questions are quite obvious. There was no change in policy
and none was intended. The strike was the only force which set into
operation an uninterrupted chain of events which was the proximate
cause of the unemployment of claimants herein. The theory of
intervening cause is not supported by any facts and apparently was
injected into this cause as a diversionary measure, but no amount
of legal gymnastics can serve to camouflage the fact that claimants
herein became unemployed by reason of a labor dispute.
"The majority also points out that claimants herein were
involuntarily unemployed. After discussing, in some detail, factual
situations which frequently exist in labor dispute cases, it is
pointed out that claimants were not members of the union which
called the strike, were not active participants therein, nor in
sympathy therewith and did not voluntarily leave their jobs or
refuse to pass a picket line. Reference to Section 1345-6-d-1
discloses that none of the matters discussed are factors to be
considered in determining if an individual lost
his employment by reason of a labor dispute. While many states do
provide for 'escape' clauses in the nature of those enumerated in
the majority opinion, the Ohio law does not. If an {*55}
individual loses his employment by reason of a labor dispute, he is
not entitled to unemployment benefits for the duration thereof and
it does not make any difference whether he was a member of the
union which called the strike, whether or not he participated
therein or was in sympathy therewith, or whether or not any of the
other situations discussed by the majority were present. This type
of case is not unique, as stated in the majority opinion. Labor
disputes frequently interrupt the continued employment of
disinterested employees, but, as hereinafter pointed out, any
unemployment that is caused thereby is not recognized as
compensable under our unemployment compensation law."
It must be borne in mind that the right to unemployment benefits
is purely statutory, that the unemployment benefit fund is made up
in bulk of employers' contributions, employees not being required
to contribute anything, and that only those are entitled to
benefits who come within the terms of the statute granting the
same.
The statute provides that no individual may be paid benefits for
the duration of any period of unemployment, where the administrator
finds that such individual lost his employment or left his
employment by reason of a labor dispute. The leaving of his
employment by an individual usually contemplates a voluntary act
upon his part, whereas the losing of employment usually
contemplates an involuntary act.
In 25 Words and Phrases, 652, it is stated:
"The word 'lost' according to the various definitions of it as
found in Webster's Dictionary, implies an inability to retain or
recover, or an involuntary deprivation of the thing which is said
to be lost. In the ordinary and common sense of the word no man can
be said to have lost a situation which he of his own motion and
without any reasonable compelling cause {*56} resigns, and
the duties of which of his own free will he refuses longer to
discharge. A situation as teacher may be lost from sickness or
personal injury, by the failure of the principal to reappoint, or
by discharge to make room for another, or by the insolvency of the
employer, or the destruction of the buildings by fire; but the
situation is not lost when the person voluntarily resigns and
abandons to take another, which under the circumstances he
prefers." In support of such text is cited Shafer
v. Senseman, Exrx., 125 Pa., 310, 17 A., 350.
In the present case those who went out on strike or quit their
employment in sympathy with the strikers left
their employment. Claimants, who were involuntarily deprived of
their employment, lost their employment, and the
statute makes both groups ineligible for unemployment
compensation.
Not only has Ohio not provided a so-called "escape" clause for
those who, without fault on their part, lose their employment by
reason of a labor dispute, but our General Assembly has
affirmatively declined to provide such an "escape" clause.
In the 98th General Assembly, Senator Guthrie introduced Amended
Senate Bill No. 142, a bill to amend Sections 1345-1, 1345-4,
1345-6, 1345-8, 1345-10 and to enact Section 1345-33 of the General
Code, relative to unemployment compensation. Lines 723 through 745
of the bill read as follows:
"d. Notwithstanding the provisions of subsection (a) of this
section, no individual may serve a waiting period or be paid
benefits for the duration of any period of unemployment with
respect to which the administrator finds that such individual:
"(1) lost his employment or has left his employment by reason of
a labor dispute (other than a lockout) at the factory,
establishment, or other premises {*57} at which he was
employed, as long as such labor dispute continues. There
will be no disqualification, however, if the following facts
exist :
"(A) The individual is not participating in or financing
or directly interested in the labor dispute which caused the
stoppage of work; and
"(B) He does not belong to a grade, particular union
local, or class of workers of which, immediately before the
commencement of the stoppage, there were members employed at the
premises at which the stoppage occurs, any of whom are
participating in or financing or directly interested in the
dispute; and
"(C) He has not voluntarily stopped working, other than
at the direction of his employer, in sympathy with employees in his
own or some other establishment or factory in which a labor dispute
is in progress.
"If, in any case, separate plants which are commonly conducted
as separate businesses are located on separate premises which are
not on the same, adjoining, or physically proximate property, each
plant will, for the purpose of the foregoing provisions, be deemed
to be a separate factory, establishment, or other premises."
(Emphasis ours.)
Amended Senate Bill No. 142 was overwhelmingly passed in both
the Senate and the House, but not until after the italicized
language had, by amendments, been entirely deleted therefrom.
It seems manifest from the preceding legislative history that
the General Assembly positively intended that any person who loses
his employment voluntarily or involuntarily, as a result of a labor
dispute, shall not be eligible for unemployment benefits as long as
that labor dispute continues.
In the Miller case, supra, decided by the Court
of Appeals for Lucas County there was no written opinion, and the
Court of Appeals for Tuscarawas County, {*58} in case No.
801 in that court, a likewise similar case, held in accord with the
judgment in the present case but no opinion was written.
This court granted a motion to certify the record in the
Miller case, but before there was a hearing on the
merits, the appeal was dismissed for the reason that the appellant
Board of Review was unauthorized in law to take the appeal.
Using the language of the unanimous opinion of the Court of
Appeals in the present case, we conclude as follows:
"There is no qualifying escape clause provided in our statute
but, in plain and unambiguous language, the statute provides: 'that
such individual lost his employment or has
left his employment by reason of a labor dispute.'
Had the Legislature intended a different result this provision of
the statute could easily have been worded by the use of appropriate
language to cover a situation of this kind. In the construction of
a statute a court has no right to extend or improve the provisions
of a statute to meet a situation not provided for. As much as we
might desire to see these claimants receive unemployment benefits,
we have no authority to add or supply language to the statute to
accomplish that purpose when the statute does not so provide. The
statute does not differentiate between those individuals who are
actually on strike and those individuals who are innocently
unemployed because of said strike. The only question we are called
upon to answer is, did these claimants lose their employment by
reason of a labor dispute. The only answer to this question must be
in the affirmative."
In our opinion, the only way in which this court could grant
relief to the claimants in this case would be by amending the
statute, which the General Assembly, the only branch of government
with power to legislate, has affirmatively declined to do.
{*59} We can not repeat too frequently that the sole
function of a court is jus dicere non jus
dare.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
DISPOSITION
Judgment
affirmed.