Artim Transportation System, Inc. v. Review Board ( 1971 )

Robertson, J.

This matter comes to us for a judicial review of a decision, of the Review Board of the Indiana Employment Security Division. Claimants, some 76 employees of Artim Transportation System, appellant herein, filed individual applications for unemployment compensation benefits for approximately three weeks of unemployment arising out of a work stoppage at the Artim truck terminal in Hammond, Indiana. Artim notified the Indiana Employment Security Division that the claimants’ unemployment was due to a labor dispute and should not, therefore, be compensable under § 1504 of the Indiana Employment Security Act as found in IC 1971, 22-4-15-3, Ind. Ann. Stat. § 52-1539c, (Burns’ 1964). Thereafter, a hearing was had before a referee which resulted in a finding that claimants had not participated in a labor dispute and were thereby eligible for benefits. Artim appealed to the Review Board which affirmed the decision of the referee.

In affirming the referee’s decision the Review Board stated the relevant evidentiary facts and inferences drawn therefrom, as follows:

“STATEMENT OF FACTS: The record is in agreement that the claimants were unemployed during week ending April 15, 1967, when they returned to work, as recalled by the employer herein, subsequent to the establishment of a new agreement between the employer and Teamsters Union Local 142, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. It is shown that the agreement between the employer and said union had expired on March 31, 1967.

“An association representing the employer herein, as well as other trucking companies, began negotiations with representatives of the employees’ bargaining unit early in March 1967, and had frequent meetings until an agreement was reached on or about May 4, 1967. There is no evidence of probative value showing that an impasse in negotiations had been reached at any particular time, however, it is shown that negotiations continued in a fluid state.

“The employer herein unilaterally determined that a ‘labor dispute’ existed and, therefore, ceased operations during week ending April 15, 1967, recalled claimants to work week ending April 22, 1967, and then again ceased operations from week ending April 29, 1967, to May 4, 1967. The record establishes that during the cessation of operations by this employer, work was available, claimants were available, the empoyer’s place of business was not being struck, nor were the claimants picketing.

“The employer’s position is that since an association members place of business was being struck, ‘a strike against one is a strike against all.’ ”

Based on the foregoing statement of facts the Review Board entered the following findings and conclusions:

“FINDINGS AND CONCLUSIONS: The Review Board finds that the collective bargaining agreement between the employer herein and Teamsters Union Local 142, International Brotherhood of Teamsters, Chauffeurs, Warehouse-men and Helpers of America, expired on March 31, 1967. “It further finds that the employer was a member of an association of motor freight operators who began negotiations with the claimants’ bargaining unit in early March 1967, to establish a new agreement.

“It further finds that good faith negotiation meetings occurred frequently and remained in a fluid state until May 4, 1967, when a new contract was agreed upon.

“It further finds that good faith negotiations between labor and management do not in or of themselves constitute a labor dispute.

“It further finds that this employer unilaterally determined that a ‘labor dispute’ existed and, therefore, ceased operations for week ending April 15, 1967, pending negotiations during said week.

“It further finds that the claimants were recalled by the employer and worked week ending April 22, 1967.

“It further finds that the employer again ceased operations for week ending April 29, 1967, to May 4, 1967, and the claimants returned to work, as recalled.

“It further finds that during the claimants’ unemployment, as set forth herein, they were available for work, the employer’s establishment was not being struck, the claimants were not picketing, and neither is it shown that the claimants were withholding their services.

“The Review Board concludes that the claimants are not disqualified from receiving benefit rights under § 1504 of the Act since there was no labor dispute between the employer and claimants at the employer's establishment or place of business. . . .

“It further concludes that the claimants were unemployed through no fault of their own and cause for their unemployment is therefore attributable to the employer within the meaning of the Act.”

As provided by the Indiana Employment Security Act in IC 1971, 22-4-17-12, Ind.Ann.Stat. § 52-1542k (Burns’ 1964), appellant assigns error in that the decision of the Review Board is contrary to law. As further provided by Burns’ § 52-1542k, said assignment is sufficient to present to the reviewing court both the sufficiency of the facts found to sustain the decision, and the sufficiency of the evidence to sustain the findings of fact.

Appellant seeks to establish the ineligibility of claimants for unemployment compensation under the disqualification provision of the Act, as set forth in IC 1971, 22-4-15-3, Ind. Ann. Stat. § 52-1539c (Burns’ 1964), which reads:

“An individual shall be ineligible for waiting period or benefit rights: for any week with respect to which an employee of the division, designated by the director and hereinafter referred to as the deputy, finds that his total or partial or part-total unemployment is due to a stoppage of work which exists because of a labor dispute at the factory, establishment, or other premises at which he was last employed; Provided, That this section shall not apply if it is shown to the satisfaction of the deputy that: he is not participating in or financing or directly interested in the labor dispute which caused the stoppage of work; and he does not belong to a grade 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 he has not voluntarily stopped working, other than at the direction of his employer, in sympathy with employees in some other establishment or factory in which a labor dispute is in progress. . . .”

It is contended by appellant that the evidence is insufficient to support the Board’s finding that the claimants are not disqualified from receiving benefit rights under Burns’ 1539c, supra.

It is a well settled premise of judicial review of administrative decisions that this court is not at liberty to weigh the evidence and that we must accept the facts as found by the Review Board. However, this court and our Supreme Court have established several important exceptions to this general rule, which if proven by the party seeking reversal, can provide the basis for reversing the decision of the Review Board. In Williamson Co. v. Review Bd. of Indiana Emp. Sec. Div. (1969), 145 Ind. App. 266, 250 N. E. 2d 612, 616, these exceptions were clarified and restated as follows:

“(1) The evidence on which the Review Board based its conclusions was devoid of probative value;

“(2) The quantum of legislative evidence was so proportionately meager as to lead to the conviction that the finding does not rest upon a rational basis;

“(3) The result of the hearing before the Review Board was substantially influenced by improper considerations; “(4) There was no substantial evidence supporting the conclusions of the Review Board;

“(5) The order of the Review Board, its judgment or finding, is fraudulent, unreasonable or arbitrary;

“(6) The Review Board ignored competent evidence; “(7) Reasonable men would be bound to reach the opposite conclusion from the evidence in the record.”

In support of its assigned error, appellant relies upon all of the aforementioned exceptions as the basis for reversal of the Review Board’s decision.

After carefully reviewing the record, we do not agree with appellant’s argument that the Review Board’s findings fall within the Williamson, supra, exceptions. The record reveals that the evidence concerning the facts was conflicting, and because it was conflicting we cannot say that reasonable men would have reached a different conclusion than that reached by the Review Board herein.

In a judicial review of an administrative decision, the burden of proof rests upon the appellant to show that the Board erred in reaching its decision. Bootz Mfg. Co. v. Review Bd. of Ind. Emp. Sec. Div. (1968) 143 Ind. App. 17, 237 N. E. 2d 597.

Appellant herein has failed in its burden of proving that the Review Board erred in its finding that a labor dispute did not exist at the factory, establishment, or other premises at which the claimants were last employed. It can be inferred from the evidence that a labor dispute did exist at the C. P. T., another member of the employer bargaining association, truck terminal. However, the strike by other members of claimants’ local union against their employer who was a member of appellant’s bargaining association does not affirmatively establish the existence of a labor dispute at appellant’s truck terminal.

To overcome its failure to affirmatively establish a labor dispute at its truck terminal, appellant has urged this Court to adopt the interpretation that a strike by other members of claimants’ union against their employer is a strike against all the members of the employer bargaining association. In support of this contention, appellant has relied upon several National Labor Relations Board cases wherein the United States Supreme Court, as well as other federal courts, have held that it is not an unfair labor practice for an employer who is a member of an employer bargaining association to lock-out its non-striking employees in response to a “whipsawing” strike by the employees’ union against the association. While it was implied in these labor relation cases that under the particular facts of each case a strike against one member employer was a strike against all the members of the association, it was neither stated nor implied that to construe a strike against one as a strike against all should stand as a general rule of interpretation. To do so in either labor relations cases, or unempoyment compensation cases, as the instant one, would be to negate the necessity of showing whether the member employer locked out its employees in response to whipsaw or selective strikes by the employees’ union against the employers bargaining association, or whether the employer independently locked out its employees while another employer was being struck due to a labor dispute between that employer and its employees based solely on local issues.

Furthermore, appellant’s citation of National Labor Relations Board cases is of little benefit in this judicial review, since those cases are solely concerned with what constitutes unfair labor practices and not with the issue of eligibility of employees for unemployment compensation. As was stated in City Pattern & F. Co. v. Review Bd. of Ind. Emp. Sec. Div. (1970), 147 Ind. App. 636, 263 N. E. 2d 218, at p. 223:

“Interspersed in their argument that ‘[t]he evidence on which the Review Board based its conclusion was devoid of probative value’, are citations of and quotations from federal cases concerning the employers’ right under the National Labor Relations Act to use the lockout as an economic bargaining weapon ‘in support of a legitimate bargaining position.’ Appellants fail to note that there is a distinction between the rights and duties of employers and employees under the National Labor Relations Act and the rights of unemployed persons under the Employment Security Act.”

Appellant further urges reversal of the Review Board’s decision on the theory that claimants failed to establish that they came within any of the exception provisions of IC 1971, 22-4-15-3, Ind. Ann. Stat. § 52-1539c (Burns’ 1964). We find no merit in this theory in that it has not been shown that claimants are disqualified from eligibility for benefit rights under the governing proviso of § 52-1539c, and therefore, it was not incumbent upon the claimants to establish that they came within one of the exceptions to the disqualification proviso. The statute sets forth in clear and unambiguous language that an individual shall be ineligible for benefits if it is found that the work stoppage was due to a “labor dispute at the factory, establishment, or other premises at which he was last employed:”. (Emphasis added). Appellant may have succeeded in establishing that a labor dispute existed at the “factory, establishment, or other premises” of another member of its multi-employer bargaining association, but it did not, as the Board found, successfully establish a labor dispute at its own establishment.

It is arguable that to reach a different conclusion in the instant case would better serve the declared public policy of this state to remain neutral in labor management relations. However, to reach a different result would be to violate the clear and unambiguous language of the statute as it presently reads. If the public of the state would be better served by amending the statute to encompass modern labor and management practices not contemplated when the statute was initially enacted, then the responsibility lies with the legislature and not with the courts to so change the statute.

In General Motors Corp. v. Review Bd. of Ind. Emp. Sec. Div. (1970), 146 Ind. App. 278, 255 N. E. 2d 107, a position similar to our holding in the present case was expressed in a concurring opinion as follows:

“Appellees in their briefs properly paraphrase each of the contentions made by appellant in its brief. During oral argument, however, appellant injected a public policy consideration deserving of comment here. Appellant argued that state funds in the form of compensation benefits should not be made available to unions in such a manner as to constitute a subsidy to selective strike activity such as here conducted. In this connection, it was the substance of appellees’ argument that even if the union did, in fact, utilize the ‘selective strike’ method for maximum negotiating leverage upon the entire General Motors operation and even if the union did so with the knowledge and expectation that certain non-striking employees, arbitrarily selected by the union, as here, could draw financial assistance in the form of unemployment benefits, thereby decreasing the adverse effect of the labor dispute upon such employees, such does not alter the fact that union conduct of this sort is not statutory cause for benefit ineligibility. Appellees stated that if the labor strategy of this sort is deemed an evil it is for the legislature to so declare and to remedy that evil by statutory amendment. While I recognize the very real public policy consideration in this respect I tend strongly to agree with appellees that we can no more judicially legislate or implement what we think public policy should be in this regard, than we can arbitrarily, dehors the record, attribute to the union the ‘evil’ motives hereinabove referred to.”

Appellant has cited several cases from other jurisdictions wherein, either by statute or statutory construction, employees who were locked out by their employer acting in response to the employees’ union striking another member of the employers bargaining association were denied eligibility for unemployment compensation benefits. In those jurisdictions where the applicable statute differs from ours, there can be little question that those courts are empowered to reach a conclusion different from the result we are compelled to reach herein. However, we do not find ourselves in a position to follow those jurisdictions which in construing a statute substantially similar to ours, have ignored statutory language in order to reach a desired result.

One such case cited by appellant is McKinley v. California Employment Stabilization Com’n. (1949), 34 Cal. 2d 239, 209 P. 2d 602, where confronted by both a factual situation and a statute substantially similar to those in the instant case, the Court denied unemployment compensation benefits to the claimants. However, three of the seven justices in McKinley, supra, dissented for the same reasons we feel compelled to reach a result different from the majority holding in that case.

In his dissenting opinion, the Chief Justice in McKinley, supra, p. 617, expressed his opposition to the majority viewpoint as follows:

“It is not the province of this court to consider either the merits of the trade dispute underlying the stoppage of work or the social desirability of paying benefits to petitioners’ employees. See W. R. Grace & Co. v. California Employment Comm., 24 Cal. 2d 720, 731, 151 P. 2d 215; Bodinson Mfg. Co. v. California Employment Comm., 17 Cal. 2d 321, 325, 109 P. 2d 935. There is nothing in section 56 or any other portion of the Unemployment Insurance Act which would justify a denial of benefits here, and the possibility that the allowance of benefits in a case such as this may furnish some members of a union with funds which could be used to help finance a labor dispute is plainly a matter which only the Legislature may consider.”

Another dissenting justice in McKinley, supra, p. 618, stated:

“I cannot believe that it was the intention of the Legislature in enacting Section 56 of the Unemployment Insurance Act, to disqualify from unemployment insurance benefits any employees except those who actually leave their work because of a trade dispute between them and their employer. This is what the act provides, and to extend it further by judicial interpretation, is, to my mind, nothing more or less than judicial legislation.”

In accordance with the foregoing reasons we are constrained to hold that the decision of the Review Board is not contrary to law and should, therefore, be affirmed.

Sullivan, C. J., and Lowdermilk, J., concur.

Buchanan, J., concurs in result with separate opinion.