Evergreen Textiles, Inc. v. State Department of Industrial Relations , 42 Ala. App. 364 ( 1964 )

PER. CURIAM.

I.

The facts in addition to those given in the opinion of JOHNSON, J., can be amplified from the appellant’s application for rehearing:

“We respectfully request the Court to clarify one portion of the Statement of Fact in its Opinion, as follows:

“(a) On page 3 of the Opinion, last paragraph [¶[ 8 of dissenting opinion, infra], the Court states the occasion involving the machine repair and the action of Mr. White, the Plant Manager concerning same. The Opinion recites that—

“ ‘Mr. White entered the rest room and “got all over” him but said nothing to the other two mechanics and left them in the rest room smoking.’

“The inference seems to be that Mr. White was reprimanding him about being in the rest room, but said nothing to the other two mechanics and left them in the rest room smoking. This was not the case, under the undisputed testimony. As to this, Appellee testified:

“ ‘Well, Mr. White came in about the time I was preparing to leave and he started getting all over me about having another machine out there that was broke down and he wanted me ■ on it.’ (Tr. 15, 16)

“Also, the Opinion of the Court recites that—

“ ‘Wells further stated that on his way to pick up his tool to fix another ■ machine, some operator stopped-him at her machine for not more than one-half a minute to ask him a question, possibly about her machine, and Mr. White came up “ready to chew again”.’..

“As á matter of fact, the incident did not concern ‘another machine,' but the same machine which Mr. White "had directed him to fix; and, Mr. White did not 'come up’ ready to chew again, rather he was waiting at the same machine .which- he had directed Wells to fix. As to this, Appellee testified:

“ ‘Well, Mr. White came in about the time I was preparing to leave and he started getting all over me about having another machine out there what was broke down and he wanted me on it. * * * So I told him I would get on the machine, but in my mind I was wondering,'why that one of the other mechanics that had a lot more experience than I did — I had about two years experience and each one of them had about fifteen or twenty, but they were left smoking in the rest room and nothing said to them. Well, I go back up to the other end of the building to get my tools and started back. Some operator on the way — I remember and I could tell her name if I have to-stopped by. She stopped me for some reason, maybe to ask me a question about her machine, I don’t remember what, but I stopped, I’d say, for about half a minute, not more than that, I don’t think. I continued on to the machine and when I got back Mr. White was at the machine and ready to chew again/

“Furthermore, we respectfully submit that in order to put the case in a proper context, the following additional Statements of,Fact should be added to the Opinion, based on the undisputed testimony of Appellee, viz.:

“(a) T think I first became employed by Alabama Textile Products Corporation here in Andalusia in August of 1952. I worked with Alatex until 1957 * * * The day that Alatex turned out for vacation in the summer of 1957, on that day I got a notice from Chem-strand to come and go to work the following Monday. * * * • I went to work at Chemstrand on that day and didn’t come back to Alatex to be reinstated, not right away. I worked at Chemstrand about three or four months, until about September, 1957. I came back to work for Alatex in the Alatex plant and they took me back. Then in July, 1959 I was employed by Evergreen Textiles over at Evergreen, Alabama — I was transferred. I don’t remember how long I worked for Evergreen Textiles then, but it was some few months. Then I took a job with another Company. I quit my job voluntarily. I took a job with Liberty National Insurance Company. I worked about four or five weeks for Liberty National. That was about December 7, 1959. Then I came back to the Evergreen Plant. I saw Mr. White. I asked him for my job back. He took me back. The last few months that both Mr. White and I were at Alatex in Andalusia I worked under Mr. White.’ (See pages 9 and 10 of Appellant’s Brief)

“(b) The fact that Mr. Wells, two weeks before the date he quit his job had turned in a notice of voluntary leaving, which he revoked, is also a matter of importance. As to this Appellee testified:

“ 'About a week or two, I don’t remember exactly how many days, I had turned in a notice, a verbal notice, to leave. But during the time and before the deadline of the termination I decided to stay on. I think it was a one weeks notice, I can’t be sure. I gave this notice to Mr. Russ White. I can’t remember the exact words I used in giving the notice, but it was something to the effect that it had come to the point that we couldn’t get along. It was just too hard to stay. And that it looked like I was going to have to leave. So, he accepted my weeks notice, or two weeks. * * * ’ (See pages 3 and 4 of Appellant’s Brief.)

“(c) It is also an important part of the general background of the facts in this case that Appellee, Wells, had several times requested transfer from Evergreen back to Alatex at Andalusia and that his home was nearer Andalusia than it was to Evergreen; also, his wife worked at Alatex in Andalusia.

“(d) The time Appellee Wells told the Plant Manager, White, that he wasn’t going to wait until 4:00 o’clock, but was going to see Mr. Taylor then is of substantial importance as a part of the background.

“ ‘That was in the middle of the work day, about 11:30 in the morning. My working hours in Evergreen Textiles were from 7:00 in the morning until 12:00 noon, and 1:00 in the afternoon until 4:00 in the afternoon.’ ”

II.

Burden, under Code 1940, T. 26, § 214 subd. B, is on claimant to show good cause connected with his work for leaving it.

In Speagle v. United States Steel Corp., 39 Ala.App. 559, 105 So.2d 721, we asked :

“Inquiry No. 4. Is an employee’s statement of his apprehending violence to his person, if he were to cross a picket line, legal evidence; and, if so, is such apprehension (without further evidence of anticipated violence) which leads to his refusal to cross a picket line (thrown up by a union to which he does not belong) before his working establishment sufficient and good ground to remove the disqualifying effect of said § 214, subd. A, as amended, supra?”

To which the Supreme Court responded:

“ ‘In answer to this question it is our opinion that an employee’s statement of his apprehension of violence to his person if he were to cross a picket line would not be legal evidence. McGuff v. State, 248 Ala. 259, 27 So.2d 241.’ ”

In reversing this court, the Supreme Court, per Simpson, J., said (Avondale Mills v. Burnett, 268 Ala. 82, 106 So.2d 885):

“We find a good definition of ‘good cause’ within the meaning of the Code section, supra, in Department of Indus. Rel. v. Mann, 35 Ala.App. 505, 50 So.2d 780, 783, where it is stated: ‘We must therefore conclude that the legislature meant a reasonable cause, one that is material and substantial as applied to a particular set of facts’.

“We think the two cases of Henderson v. Department of Indus. Rel., 252 Ala. 239, 40 So.2d 629, and Department of Indus. Rel. v. Wall, 34 Ala.App. 530, 41 So.2d 611 are conclusive to the result that the claimant failed to discharge the burden of proof. Where an employee leaves his work of his own volition, he has the burden of proving facts to avoid the requirement of the statutory provision, supra. In the case at bar, therefore, the burden of proof was upon claimant, Burnett, to show that he left the employment of Avondale Mills for good cause connected with the work. In our opinion, the claimant failed to meet this burden.”

And, in formulating another reversal, Goodwyn, J., in Andala Co. v. Ganus, 269 Ala. 571, 115 So.2d 123, said:

“The pertinent consideration is whether or not claimant acted reasonably in quitting her job. In other words, a test of good cause is whether it is reasonable when measured by what the average or normal worker would have done under similar circumstances. Can it be said that claimant, under the facts as stated in the opinion, acted reasonably, that is, as an average or normal worker ? * * * ”

What were the specific items of cause which claimant advances ?

1) There is some evidence of his wife’s being transferred back to Andalusia. In spite of all that Brown, J., said in dissent in Ex parte Alabama Textile Products, 242 Ala. 609, 7 So.2d 303, 141 A.L.R. 87, our Supreme Court has refused to equate a good marital Cause' as a non-disqualifying reason to leave work.

2) Chewing again” was never enlarged to express a reprimand by showing the actual words used. Our criminal statutes penalize (1) the use in or about the family at home or in the hearing of females of abusive, insulting or obscene language, and (2) disturbing the peace of others by violent, profane, indecent, offensive or boisterous language. Code 1940, T. 14, §§11 and 119(1). See Stewart v. Department of Industrial Relations, 40 Ala.App. 383, 114 Sq.2d 274.

3) Dividing the work up was certainly within managerial prerogative. Without showing oppression, as in Alabama Mills v. Brand, 251 Ala. 643, 38 So.2d 574, or reduction in earnings as claimed in , Ganus, supra, this circumstance was not a cause to impel a reasonable man to give up work.

4) Because White, the plant manager, got angry at Wells’s knocking off at noon to go see Taylor was, under all the evidence, immaterial. It is clear that Taylor tried to persuade Wells to try staying at Evergreen. White, the circuit court concluded, could recommend dismissal. But Taylor was White’s superior. Wells failed to show that he left with bona fide cause to believe that he had, in effect, been fired.

These incidents fail to afford objective grounds to show, that-the fault for the unemployment was such that a reasonable man would have quit, too.

All work with others implies a certain amount of give'and take up and down the chain of command and with fellow workers on the same level. “Degradation,” “sweating,” “abuse,” and other “oppression” are nouns colored with pejorative qualifications. We can only find their existence from evidence of objective facts. The McGuff rule does not allow the employee’s subjective feeling state to become the statutory standard.

The application for rehearing is due to be granted and the judgment below is reversed.

Reversed and remanded.

PRICE, P. J., and CATES, J., concur. JOHNSON, J., dissents.