LEACH, ADM'R, BUREAU OF
UNEMPLOYMENT COMPENSATION; TURNER,
APPELLANT,
vs.
REPUBLIC STEEL CORP. ET AL.,
APPELLEES. LEACH, ADM'R,
BUREAU OF UNEMPLOYMENT
COMPENSATION; TOMASULA,
APPELLANT, v. REPUBLIC STEEL
CORP. ET AL.,
APPELLEES
Nos. 38129, 38339
SUPREME COURT OF OHIO
199 N.E.2d 3, 176 Ohio St. 221, 27 Ohio Op. 2d 122
May 13, 1964, Decided
APPEAL from the Court of Appeals for
Stark County. APPEAL from the Court of Appeals for Mahoning
County.
HEADNOTE
Unemployment compensation -- Eligibility and qualification
for benefits -- Section 4141.29, Revised Code -- Unemployment due
to labor dispute not compensable -- Strike summarily ended by court
injunction -- Compensation not payable thereafter,
when.
SYLLABUS
1. Under applicable Section 4141.29 (D) (1) (a), Revised Code, a
part of the Ohio Unemployment Compensation Act, an employee who
becomes and remains unemployed by reason of a labor dispute is not
entitled to the payment of unemployment compensation for any week
during which he is unemployed due to such labor dispute and during
which such labor dispute continues.
2. Where a labor dispute between an employer and his employees
over wages and conditions of employment results in a strike which
closes the employer's establishment, and the strike itself is
summarily ended by a court injunction, no unemployment compensation
is payable to an employee from the end of the strike until he is
recalled to work after the employer's establishment is readied for
resumption of operations, where such dispute is in progress during
such period and for some time thereafter.
STATEMENT OF THE CASE
Although there are different plaintiffs-appellants in each of these
cases, the question presented is the same, and the cases will be
considered and disposed of together.
Here involved are two claims for unemployment compensation under
the Ohio statutes relating to that subject. The claims cover a
period between the termination of the 1959 steel strike on November
7, 1959, by an affirmed injunction of a Pennsylvania federal
district court issued under the emergency provision of the amended
Taft-Hartley Act, and the date appellants, employees of the
Republic Steel Corporation and members of the United Steelworkers
of America, AFL-CIO, ready and able to work, were recalled to their
employment after that company had readied its plants for resumption
of operations as far as appellants were concerned but before the
company and its employees reached an agreement as to wages and
other disputed matters, which occurred on January 4, 1960.
Determinative of the controversy are the interpretation and
application of Section 4141.29 (D) (1) (a), Revised Code, a part of
the Ohio Unemployment Compensation Act. That portion of the section
referred to in force in 1959 and so far as applicable here
recites:
"(D) Notwithstanding division (A) of this section, no individual
may serve a waiting period or be paid benefits under the following
conditions:
"(1) For any week with respect to which the administrator finds
that:
"(a) His unemployment was due to a labor dispute other than a
lockout at the factory, establishment, or other premises at which
he is or was last employed; and for so long as such labor
dispute continues." (Emphasis supplied.)
The Administrator of the Bureau of Unemployment Compensation
determined that appellants, as well as many others in a like
situation, were entitled to unemployment compensation because of
"lack of work." On appeal to the Board of Review of the Bureau of
Unemployment Compensation, the board reversed the determination of
the administrator and denied unemployment benefits on the ground
that appellants became and remained unemployed by reason of a
"labor dispute."
Such decisions of the board, on appeal, were affirmed
respectively by the Courts of Common Pleas of Stark and Mahoning
Counties, and such judgments were in turn affirmed, on appeal, by
the respective Courts of Appeals for those counties.
Pursuant to the allowance of motions to require the Courts of
Appeals to certify the records, the causes are now in this court
for disposition.
COUNSEL
Messrs. Clayman, Sigall, Jaffy & Taylor, Messrs.
Green, Schiavoni & Murphy and Mr. Herschel
Kriger, for appellants.
Mr. Walter J. Mackey and Mr. C.
Frank Manak, for appellee Republic Steel
Corporation.
Mr. William B. Saxbe, attorney general,
Mr. Bernard L. Heffernan, Mr. Frederic E. Whitker
and Mr. Hubert Dutro, for appellee Board of
Review, Bureau of Unemployment Compensation.
JUDGES
ZIMMERMAN, J. TAFT, C. J., MATTHIAS, O'NEILL, GRIFFITH and HERBERT,
JJ., concur. GIBSON, J., dissenting.
AUTHOR: ZIMMERMAN
OPINION
{*223} The Ohio Unemployment Compensation Act was first
enacted in 1936 and has undergone various amendments since that
time. The fund out of which unemployment compensation is paid to
employees is represented entirely by compulsory contributions on
the part of employers and is in effect a tax on the privilege of
doing business in Ohio. The purpose of the act and the fund is to
enable unfortunate employees, who become and remain
involuntarily unemployed by adverse business and
industrial conditions, to subsist on a reasonably decent level and
is in keeping with the humanitarian and enlightened concepts of
this modern day.
In essence, appellants take the position that during the period
of time after the injunction, when they were awaiting a summons to
return to work, they were unemployed due to lack of work; that this
was attributable to their employer's failure to recall them; and
that during such period there was no labor dispute and no
continuation of a labor dispute within the meaning of applicable
Section 4141.29 (D) (1) (a), Revised Code, properly
interpreted.
On the other hand, appellees contend that a labor dispute was
responsible for appellants' unemployment prior to the effective
date of the injunction, viz., November 7, 1959; that despite the
injunction summarily terminating the strike the labor dispute
continued; that the injunction did not affect such continuing
dispute; that such dispute involved the terms and conditions of a
new contract between the labor union and the employer; and that the
labor dispute actually continued until January 4, 1960, when a new
agreement was reached.
As generally understood, a "strike" is a cessation of work by
employees in an effort to obtain more desirable terms with
{*224} respect to wages, working conditions, etc., whereas
a "labor dispute" is of broader scope and includes a
controversy between employer and employees
concerning wages, working conditions or terms of employment.
In support of their contentions, appellees rely on an open
letter written by Arthur J. Goldberg, then general counsel for the
United Steelworkers of America and now a justice of the Supreme
Court of the United States, admitted in evidence over objection as
an exhibit and which reads in part:
"The strike had been interrupted, but our dispute continued.
Negotiations took place during the 80 days. * * *
"On January 4, 1960, just one week before a vote was to be taken
on the companies' last offer, and three weeks before the injunction
was to be dissolved, we concluded a strike settlement with the
steel industry. The agreement is a good one, fully justifying the
sacrifice we made to obtain it. Thus, although we were to be free
to strike again on January 26, there is no longer any need to do
so. Indeed, the knowledge that we were not only at liberty to
strike again, but actually intended to, was a potent factor in
inducing the employers to come to terms with us."
The statute applicable to these cases plainly provided that an
employee was not entitled to unemployment compensation during any
week when his unemployment was due to a labor dispute. Here, there
was a labor dispute culminating in a strike which forced the
employer to close its plants. Once these plants were closed, they
could not be restored to full operation immediately upon the
termination of the strike. The reactivation of the plants was
necessarily a gradual process, and the employer was not required to
recall an employee to work until such employee's department was
readied and his services needed. It was the strike which caused the
plants to cease operations in the beginning, and the time required
to reactivate them as a result of the shutdown was attributable to
a labor dispute which continued until the agreement of January 4,
1960. Consequently, appellants' unemployment began and continued by
reason of a labor dispute, even though the strike itself had come
to an end.
This opinion could be carried to a greater length, but we
{*225} feel it unnecessary to do so. It is our conclusion
that the Board of Review, upon the evidence presented to it, was
warranted in finding that a labor dispute existed within the plain
language of Section 4141.29 (D) (1) (a), Revised Code, during the
time for which appellants claimed unemployment compensation, and
that appellants were unemployed over the period in controversy by
reason of such dispute and were not entitled to the payment of
unemployment compensation. We are further of the opinion that the
lower courts correctly determined that the action of the Board of
Review was neither unlawful, unreasonable nor against the manifest
weight of the evidence.
There are a number of cases which could be cited buttressing our
conclusion. Probably the one nearest in point with respect to the
similarity of statutory terminology is that of
Johnson v. Kentucky Unemployment Insurance
Commission (Ky.), 367 S. W. (2d), 253.
As bearing on the subject, see, also, American Steel
Foundries v. Gordon, 404 Ill., 174, 88
N.E.2d, 465; Carnegie-Illinois Steel Corp. v.
Review Board of Indiana Unemployment Compensation,
117 Ind. App., 379, 72 N.E.2d, 662; Saunders v.
Maryland Unemployment Compensation Board, 188 Md.,
677, 53 A. (2d), 579; Legacy v. Clarostat
Mfg. Co., 99 N. H., 483, 115 A. (2d), 424;
Polinchak Unemployment Compensation Case, 175 Pa.
Sup., 181, 103 A. (2d), 273; and Fort Pitt Mfg.
Co. v. Unemployment Compensation Board of
Review, 176 Pa. Sup., 162, 106 A. (2d), 672.
Compare Davis v. Aluminum Company of
America, 204 Tenn., 135, 316 S. W. (2d), 24, where, under
a statute limiting disqualification of a claimant for benefits to a
"labor dispute which is in active progress," unemployment
compensation was allowed when the manufacturing plant was being
prepared for resumption of work after an agreement had been
reached.
The judgments of the Courts of Appeals for Stark and Mahoning
Counties are affirmed.
Judgments affirmed.
DISPOSITION
Judgment
affirmed.
DISSENT
{*226} GIBSON, J., dissenting.
Under Section 4141.29 (D) (1) (a), Revised Code, as it existed
on November 7, 1959, a covered employee was not entitled to serve a
waiting period or be paid unemployment compensation for any week
with respect to which the administrator found that the unemployment
was "due to a labor dispute" and "for so long as such labor dispute
continues." The term, "labor dispute," was not defined by the
General Assembly; therefore, it is our ultimate responsibility to
define the term in the factual context of these cases.
The appellants in these cases are employees of the Republic
Steel Corporation and members of the United Steel Workers of
America, AFL-CIO. The union, as authorized bargaining
representative of these employees, had entered into a collective
bargaining agreement with the company, covering the wages, hours,
and working conditions of the employees and which was due to expire
by its terms on June 30, 1959. Industry-wide bargaining sessions
began on April 10, 1959, between representatives of 12 steel
companies, including Republic Steel, and the union.
A new agreement not having been reached by the expiration date
of the old contract, the parties mutually agreed to extend the
existing contract until July 14, 1959. On the latter date, no
agreement had been reached, the extended contract expired, and on
July 15 the appellants and their fellow employees ceased work in a
strike.
On October 21, 1959, a Pennsylvania federal district court,
acting under the emergency provisions of the Labor Management
Relations Act, 1947, enjoined the union and its members from
engaging further in the strike and ordered that as long as there
was no new agreement the employees "shall be employed under the
terms and conditions of all agreements in effect on June 30, 1959."
This injunction became effective on November 7, 1959, when it was
affirmed by the United States Supreme Court. A new collective
bargaining agreement was reached on January 4, 1960, within the
80-day period of the emergency injunction.
Counsel for Republic Steel in argument to this court stated that
some 40,000 to 50,000 employees returned to work on November 7,
1959. According to the stipulated facts, the operations of Republic
Steel are such that once shut down they can {*227} not be
resumed immediately. The two employees involved in these cases,
along with some 2,000 others, were recalled at the earliest
possible date from the standpoint of production but in any event
some weeks after November 7, 1959.
The appellants, who allege that they were ready, willing and
able to return to work on November 7, 1959, applied for
unemployment compensation from that date to the date when they were
in fact recalled to work. The administrator allowed benefits on the
ground that such employees were unemployed because of "lack of
work." The Board of Review, on its own motion, determined
(two-to-one) that the employees were unemployed "due to a labor
dispute" and hence were disqualified from receiving unemployment
compensation.
This court clearly stated the proper premise for construing
statutory language in paragraph one of the syllabus of
Heidtman v. City of Shaker
Heights (1955), 163 Ohio St., 109, when it said: "Where a
statute is silent as to the meaning of a word contained therein and
that word has both a wide and a restricted meaning, courts in
interpreting such a statute must give such word a meaning
consistent with other provisions of the statute and the objective
to be achieved thereby." Section 4141.46, Revised Code, expressly
provides that the Unemployment Compensation Act "shall be liberally
construed." See Adamski v. Bureau of
Unemployment Compensation (1959), 108 Ohio App., 198.
The term, "labor dispute," in the area of labor-management
relations has a broad meaning. Disputes occur in the
labor-management relationship with great frequency and over
problems ranging from the trivial to the most vital. Obviously, the
General Assembly did not intend to disqualify an employee for labor
disputes about such matters as a job assignment, a pay raise, a
discharge, a violation of a safety rule, or all of the myriad
situations giving rise to a dispute between labor and management.
The law was enacted to cover unemployment. Thus the term, "labor
dispute," should be restricted for the purpose of the Unemployment
Compensation Act to a dispute between labor and management which
causes unemployment. With this general standard in mind,
consideration should be given to the statutory language and its
legislative history.
The legislative purpose can be better understood by a
comparative {*228} examination of the 1955 and 1959
provisions regarding disqualifications from receiving unemployment
compensation, which are set forth below in tabular form. The
capitalized words were omitted by the 103rd General Assembly in
1959 and the italicized words were added:
1955
4141.29 (C) Notwithstanding division (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) * * *
(2) LOST HIS EMPLOYMENT OR HAS LEFT HIS EMPLOYMENT BY REASON OF
a labor dispute other than a lockout at a factory, establishment,
or other premises at which he was employed, AS long as such labor
dispute continues, AND THEREAFTER FOR A REASONABLE PERIOD OF TIME
NECESSARY FOR SUCH FACTORY OR ESTABLISHMENT TO RESUME NORMAL
OPERATIONS;
1959
4141.29 (D) Notwithstanding division (A) of this section, no
individual may serve a waiting period or be paid benefits
under the following conditions :
(1) For any week with respect to which the administrator
finds that :
(a) His unemployment was due to a labor dispute
other than a lockout at the factory, establishment, or other
premises at which he is or was
last employed; and for so long as
such labor dispute continues.
The first important change made in statutory language in 1959
was the substitution of the term "for any week," in lieu of the
term, "for the duration of any period of unemployment." By this
change it is clear that disqualifications are to be considered on a
week-by-week basis, i. e., each week of
disqualification must stand on its own footing. If a labor dispute
{*229} does not exist in the week in question, then
benefits are payable. Unlike the majority I see no significant
difference between the 1959 language, "for so long as such labor
dispute continues," and 1955 the language, "as long as such labor
dispute continues." The majority, however, disregards the deletion
in 1959 of the most significant final clause of that sentence.
Prior to 1959, the labor dispute disqualification continued "for
a reasonable period of time necessary for such factory or
establishment to resume normal operations." Unless we are to
abandon the well-established presumption that the General Assembly
will not do a vain or useless act, the deletion of this clause
after being in existence for four years must be given significance.
The only reasonable construction to be ascribed to the deletion of
this very specific language is that the General Assembly intended
to remove the disqualification for the period of time necessary to
get the factory back to normal operation, regardless of the fact
that there would have been no delay in normal production processes
had there been no labor dispute.
Apparently, the primary purpose of the labor dispute
disqualification is to prevent the Unemployment Compensation Act
from being a factor in the causation or prolongation of labor
disputes. In other words, the disqualification precludes the use of
unemployment benefits as a weapon against an employer by using them
to finance a strike against him. Here the strike ended on November
7, 1959, so the payment of unemployment benefits could not
constitute a use of such benefits to finance a strike against
Republic Steel.
By federal court order, effective November 7, 1959, the
employment relationship continued under the terms and conditions of
the collective bargaining agreements in effect on June 30, 1959.
The only dispute which continued was over the terms and conditions
of employment which would prevail in the future under a new
contract. Negotiations for a future contract continued until a new
agreement was reached within within the 80-day "cooling off
period." These negotiations were no different from the negotiations
which occurred prior to the strike. Without question, these
negotiations did not cause unemployment in the weeks in
question.
{*230} I fail to understand how the negotiations of a
future contract by parties, who by court order continue a work
relationship governed by the terms and conditions of contracts in
effect before the strike, can be said to constitute a "labor
dispute" within the meaning of the Unemployment Compensation Act.
Apparently, the federal district court was of the same opinion when
it said in its order of January 26, 1960, that "there was and could
be no dispute between the employer defendants and the union on
November 7, 1959, or thereafter with respect to the employment
status of the members of the United Steel-workers of America
subject to this court's injunction, for the period of this court's
injunction." This is all the more difficult to understand where, as
a practical matter, 40,000 to 50,000 employees were recalled
immediately, and the remaining 2,000 employees (including the
appellants) were not recalled to work because of the inability of
the employer to get the production processes, where they worked,
back in operation immediately.
In 1963, the General Assembly amended Section 4141.29 (D) (1)
(a), Revised Code, by broadening the provisions for labor dispute
disqualification by substituting the words, "and for so long as his
unemployment is due to such labor dispute," in
lieu of the words, "and for so long as such labor dispute
continues." By this amendment the disqualification is at least as
comprehensive as it was from 1955 to 1959. The court today by its
construction of the words, "labor dispute," has obliterated the
difference in statutory standards which existed between 1959 and
1963 and has in effect retroactively applied the 1963 labor dispute
disqualification. The majority opinion fails to take into
consideration the plain fact that the only reason the appellants
and 2,000 other employees, similarly situated, were not called back
to work on November 7, 1959, when some 40,000 to 50,000 employees
were recalled, was that there was no work for them because the
factory was unable to resume full normal operations
immediately.
In conclusion, I do not believe it is necessary that a
collective bargaining agreement be executed in order to terminate a
"labor dispute" within the meaning of Section 4141.29 (D) (1) (a),
Revised Code. Rather, for the purpose of the Unemployment
Compensation Act, the labor dispute terminated on {*231}
November 7, 1959, when the 80-day emergency injunction granted
under the Labor Management Relations Act, 1947, became
effective.