ABREY ET AL.
vs.
NATIONAL CASH REGISTER CO.,
INC.
No. 73-1476
COMMON PLEAS COURT OF MONTGOMERY COUNTY
359 N.E.2d 1028, 49 Ohio Misc. 19, 3 Ohio Op. 3d 205
August 7, 1974, Decided
HEADNOTE
Labor disputes -- Eligibility for unemployment compensation
-- Burden of proof on claimant -- R. C. 4141.29(D)(1)(a)
disqualification applicable, when.
SYLLABUS
1. Where the original cause of unemployment is a labor strike, the
claimant, to be eligible for unemployment compensation for weeks of
unemployment following termination of the strike, has the burden of
proof to establish his right to unemployment benefits without the
disqualification of R. C. 4141.29(D)(1)(a) which denies benefits
when the unemployment is the result of a labor dispute.
2. R. C. 4141.29(D)(1)(a), as amended in 1963, provided that no
employee whose unemployment was due to a labor dispute other than a
lockout at any establishment owned or operated by his employer
would be eligible to receive unemployment compensation benefits for
so long as such labor dispute was in progress.
3. The 1963 amendment to R. C. 4141.29(D)(1)(a) developed an
entirely new approach to the question of how long employees, whose
unemployment was due to a labor dispute, would remain ineligible to
receive unemployment compensation benefits. Rather than an
inflexible standard, the application of which would apply to all
employees in a given plant or establishment, such as when the labor
dispute ended or when a reasonable period of time necessary to
allow the factory to resume normal operations had expired, the
legislature adopted a more flexible guideline, to wit: that
ineligibility would continue for as long as the unemployment is due
to a labor dispute. This approach requires a case by case,
situation by situation, employee by employee, department by
department analysis of the unemployment in question and a
determination by the Referee (or other hearing officer) as to
whether or not this employee's continued unemployment was due to
the labor dispute in question or to other unrelated causes. This
statutory guideline will favor neither management nor labor and
will allow an objective analysis of each case, or group of cases,
upon its own merits with the full consideration given to the nature
of the employee's specific job measured against the employer's
efforts to ready his plant to resume operations. Under the present
state of the law, existing since October, 1963, the employer must
be held to a standard of reasonableness. In other words, if the
employer does need time to resume operations in a specific
department, the hearing officer will examine this claim and
determine if same be reasonable. If so, the employee's
ineligibility to receive benefits will be extended accordingly. If
not, the ineligibility will cease forthwith.
COUNSEL
Mr. Ray E. Schmidt, for
claimants-appellants.
Mr. Lawrence S. Falter, for
employer-appellee.
Mr. Richard Austin, for appellee.
JUDGES
RICE, J.
AUTHOR: RICE
OPINION
{*20} The captioned cause came on to be heard upon the
appeal of the claimants-appellants from a decision of the referee
of the board of review, reversing the administrator's decision on
reconsideration and disallowing Unemployment Compensation to the
claimants-appellants, from which the board of review disallowed
claimants-appellants' application to institute a further
appeal.
Upon due consideration and for the reasons given in the
following discourse, the court denies the appeal of the
claimants-appellants and does, therefore, affirm the decision of
the referee of the board of review and thus denies unemployment
compensation to the claimants-appellants for the period in
question.
The claimants became unemployed because of a strike
{*21} at the National Cash Register Company which began on
October 11, 1971. Following the signing of the labor-management
contract, the claimants-appellants (approximately 10% of the
employer's work force) were not immediately recalled to work due to
the shortage of raw materials and parts on hand, both of which had
become depleted during the strike. Prior to and during the pendency
of the strike, the company made certain moves to minimize its
losses due to the strike by means of shipping raw materials to
other plants not affected by the strike. These moves were made to
protect certain raw material and to fill as many orders as
possible. The claimants-appellants were recalled to work as their
services were required for the orderly resumption of production.
These claimants-appellants have sought unemployment compensation
for the period of time between the signing of the labor-management
contract, signifying the end of the strike, and their being
recalled to work.
The case of Leach v. Republic Steel
Corp. (1964), 176 Ohio St. 221, cited by the
employer-appellee, is not controlling in the case
at bar. That case, construing a predecessor of R. C.
4141.29(D)(1)(a), must be strictly limited to its facts. The
applicable portion of R. C. 4141.29(D)(1)(a), in existence at the
time of the Leach decision, stated, in pertinent
part:
"(D) * * * no individual may * * * 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 * * *
and for so long as such labor dispute continues."
(Emphasis added.)
A careful reading of the second paragraph of the syllabus in
Leach, which states: "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 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 {*22} establishment is readied for resumption
of operations, where such dispute is in progress during
such period and for some time thereafter " (emphasis
added), together with the facts of that case, reveal that the
Leach holding applied strictly to the emphasized
portion of the syllabus.
The Leach court only held that, under the facts
of the case before them, the labor dispute had not ended at any
time prior to the employees being called back to work by the
employer. In other words, even though the strike itself was ended
by court order, the labor dispute itself, and the negotiations
designed to bring it to a conclusion, still continued and did not
end until after such time as the employees had been called back to
work following the employer's readying its plant for resumption of
operations. Since the labor dispute continued, the
Leach court held that the employees were not
entitled to benefits for the period between the court-ordered end
of the strike and the resolution of the labor dispute, evidenced by
the signing of the labor-management contract.
The Leach case does not hold, and is not
authority for the proposition, that an employee is never eligible
for unemployment compensation benefits until the expiration of a
reasonable time following the end of the strike for the employer to
ready its plant for resumption of operations.
The meaning of statutory language can often be determined by an
examination of the legislative history of the particular statutory
section in question. In the instant case, the pertinent statutory
section, applicable at the time of the events in question and
presently, is R. C. 4141.29(D)(1)(a). This section states, in
pertinent part:
"(D) * * * no individual may * * * be paid benefits * * *:
"(1) For any week with respect to which the Administrator finds
that:
"(a) His unemployment was due to a labor dispute * * * and
for so long as his unemployment is due to such labor
dispute." (Emphasis added.)
The above-quoted statutory language has remained the same since
the October 20, 1963 effective date of the {*23} then
newly amended Revised Code Section 4141.29(D)(1)(a). Prior to that
time, the statutory language under discussion read, as follows:
1) Effective October 30, 1953, R. C. 4141.29 (C)(2) -- "Lost his
employment * * * by reason of a labor dispute * * * as long
as such labor dispute continues." (Emphasis added.)
2) Effective October 2, 1955, R. C. 4141.29(C)(2) -- "Lost his
employment * * * by reason of a labor dispute * * * 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." (Emphasis added.)
3) Effective October 16, 1959, R. C. 4141.29(D)(1)(a) -- "His
unemployment was due to a labor dispute * * * and for so
long as such labor dispute continues." (Emphasis
added.)
4) To repeat, effective October 20, 1963 to date -- "His
unemployment was due to a labor dispute * * * and for so
long as his unemployment is due to such labor dispute."
(Emphasis added.)
Applying two basic rules of statutory construction, towit: 1) If
a statute is plain and unambiguous, the court must give it the
literal interpretation intended by the legislature, without
limiting it in any extent or extending its operations, and 2) The
legislature will not be assumed to have done a vain or a useless
act in amending a statute and that such amendment must be analyzed
both in the light of the changes made by the amendment from prior
language and in the light of case law construing the statute that
may have influenced the legislature to amend the section in
question, this court makes the following conclusions with reference
to the language under discussion:
1) The 1953 amendment was designed to remove the ineligibility
for benefits as of the time the labor dispute ended. Presumably,
applying the plain-meaning approach, this would mean as of the time
a contract was signed between management and the union.
2) The 1955 amendment was designed to extend the {*24}
period of ineligibility beyond the signing of the contract, itself,
to a reasonable period after the end of the labor dispute necessary
to enable management to ready its plant to resume normal
operations. This was an amendment, management-oriented in nature,
designed to not penalize the company for the labor dispute by
requiring it to either bring back their employees or to pay
benefits prior to the plant's becoming geared up for business
following the resolution of the labor dispute. Although not
penalizing management for the labor dispute, this amendment did
have the effect of penalizing the employees by virtue of the fact
that it extended their ineligibility for benefits beyond the end of
the dispute.
3) The deletion of the language in the 1959 amendment concerning
the ineligibility to receive benefits for a reasonable period of
time necessary to enable the factory or establishment to resume
operations, thus marking a return to the statutory language in
existence from 1953 to October 1955, clearly shows that the
legislature, perhaps more sympathetic to labor than its
predecessor, intended to remove the disqualification or
ineligibility for benefits for the period of time necessary to get
the factory back to normal operations, regardless of the fact that
there would have been no delay in normal production had there been
no labor dispute. Once again, one's ineligibility to receive
benefits would end as of the termination of the labor dispute (the
signing of the contract or other objective indication that the
labor dispute had terminated). This amendment was more
labor-oriented than the prior amendment, and while it did not
penalize the employee for the labor dispute (making him ineligible
to receive benefits as soon as the labor dispute had ended) it
could have had the effect, in theory, of penalizing management by
requiring the payment of benefits to their employees because of
their inability to put them back to work immediately.
It is interesting to note that the Leach
decision, supra, was based upon the 1959
amendment, holding, perhaps too literally, that even though the
strike had been ended by court order, the labor dispute continued
until the signing {*25} of the labor-management contract,
some two months later, and the employees were thus ineligible to
receive benefits until that time.
4) After years of first going one way and then the other, after
years of operating under a statutory scheme that invariably
punished or penalized either management or labor for the labor
dispute, the legislature, in 1963, perhaps as a reaction to the
Leach case's judicial interpretation of the 1959
Act, developed an entirely new approach to the question of how long
employees, whose unemployment was due to a labor dispute, would
remain ineligible to receive unemployment compensation benefits.
Rather than an inflexible standard, invariably unfair to management
or labor, the application of which would apply to all employees in
a given plant or establishment, such as when the labor dispute
ended or when a reasonable period of time necessary to allow the
factory to resume normal operations had expired, the legislature
adopted a more flexible guideline, to-wit: that ineligibility would
continue for so long as the unemployment is due to a labor dispute.
This approach requires a case by case, situation by situation,
employee by employee, department by department analysis of the
unemployment in question and a determination by the referee (or
other hearing officer) as to whether or not this employee's
continued unemployment was due to the labor dispute in question or
to other unrelated causes. This statutory guideline will favor
neither management nor labor and will allow an objective analysis
of each case, or group of cases, upon its own merits with the full
consideration given to the nature of the employee's specific job
measured against the employer's efforts to ready his plant to
resume operations. Under the present state of the law, existing
since October 1963, the employer must be held to a standard of
reasonableness. In other words, if the employer does need time to
resume operations in a specific department, the hearing officer
will examine this claim and determine if same be reasonable. If so,
the employee's ineligibility to receive benefits will be extended
accordingly. If not, the ineligibility will cease forthwith.
{*26} Based upon the foregoing discussion, the court
holds that the referee's conclusion that the unemployment of the
claimants-appellants, after the signing of the labor-management
contract, was due to a "labor dispute" is not, therefore, contrary
to law.
It now remains to be seen whether such decision was unreasonable
and against the manifest weight of the evidence.
R. C. 4141.28 (O) states as follows:
"* * * If the court finds that the decision was unlawful,
unreasonable, or against the manifest weight of the evidence, it
shall reverse and vacate such decision or it may modify such
decision and enter final judgment in accordance with such
modification; otherwise such court shall affirm the decision. * *
*"
The court's function in appeals of this nature is limited:
"A Common Pleas Court may not substitute its judgment for that
of the board of review (or referee), Bureau of Unemployment
Compensation, on factual issues and may modify the board's decision
and enter final judgment only where the facts are not in dispute
and such undisputed facts constitute substantial, credible evidence
of probative value on the issues to be determined."
Fahl v. Board of Review (1965), 2
Ohio App. 2d 286.
"In an appeal from a decision of the Unemployment Compensation
Board of Review under Section 4141.28, Revised Code, to the Common
Pleas Court, the jurisdiction of the court is limited to a
determination of whether such decision was unlawful, unreasonable
or against the manifest weight of the evidence."
Kilgore v. Board of Review
(1965), 2 Ohio App. 2d 69.
In the captioned cause, the referee concluded as follows:
"Claimants became unemployed because of a strike which began on
October 11, 1971. The Dayton plant was the source of parts for
other plants of The National Cash Register Company at which no
labor dispute existed. Non-bargaining unit employees of the Dayton
plant continued {*27} to work after the strike began on
October 11, 1971. They made urgently needed parts and shipped parts
from the existing supply to other National Cash Register plants and
to customers. They also moved some parts from the assembly line to
protective storage for the duration of the strike.
"On January 29, 1972, an agreement was reached between The
National Cash Register Company and the United Auto Workers and its
Local No. 1616, to be effective January 31, 1972. On January 31,
1972, the supply of raw material and parts was so depleted that it
was not feasible to immediately resume full production and
immediately recall all employees for work. Employees were recalled
to work as their services were required for the orderly resumption
of production.
"The evidence established that it was not feasible for National
Cash Register Co., Inc., to resume full production with a full
compliment of employees on January 31, 1972, because of the short
supply of raw material and parts. A preponderance of the evidence
indicates that the short supply of raw material and parts was due
to the strike at the premises during the period October 11, 1971 to
January 31, 1972.
"In view of the foregoing, it must be concluded that the
unemployment of each of the claimants during the week in issue in
each case was due to a labor dispute at National Cash Register Co.,
Inc."
Based upon a thorough reading of the transcript and supporting
documents, and based upon the foregoing principles of law setting
forth the court's jurisdiction with regard to the facts and matters
such as the instant case, this court concludes that the referee's
conclusions were neither unreasonable nor against the manifest
weight of evidence. Accordingly, the court adopts these findings of
fact by the referee as its own.
A company has the legal right to attempt to minimize its losses
during a strike by protecting its materials and attempting to fill
as many orders as possible. Should such actions result in some
unemployment after the end {*28} of the strike, while the
plant readies itself to resume full operations, the taking of the
necessary actions during the strike cannot be held to penalize the
company.
The law of Ohio is very clear that "[T]he burden of proof is
upon the claimant to establish the right to unemployment benefits
under the unemployment compensation law of Ohio."
Shannon v. Bureau of Unemployment
Compensation (1951), 155 Ohio St. 53.
Where the original cause of unemployment is a labor strike, the
claimant, to be eligible for unemployment compensation for weeks of
unemployment following the termination of the strike, has the
burden of proof to establish the right to unemployment benefits
without the disqualification of Section 4141.29(D)(1)(a) which
denies benefits when the unemployment is the result of a labor
dispute.
"It is the duty of a party on whom the burden of proof rests to
produce evidence which furnishes a reasonable basis for sustaining
his claim. If the evidence so produced furnishes only a basis for a
choice among different possibilities as to any issue in the case,
he fails to sustain such burden." Stevens v.
Indus. Comm. (1945), 145 Ohio St. 198.
In the captioned cause, the claimants-appellants have failed to
sustain their burden of proof.
The court might state, parenthetically, that cases from other
jurisdictions are, generally speaking, of an academic interest only
in that the pertinent statutes of such other states often vary
considerably from the specific Ohio statute under discussion.
WHEREFORE, for the reasons given above, this court denies the
appeal of the claimants-appellants, affirms the decision of the
referee of the board of review and denies the right of the
claimants-appellants to unemployment compensation benefits for the
period in question.
Judgment accordingly.
DISPOSITION
Judgment
accordingly.