Ash v. Rutledge ( 1986 )

BROTHERTON, Justice,

dissenting:

I must respectfully note my dissent in this case for three reasons.

First, the employees voluntarily did not report to work and there was no good cause involving fault on the part of the employer. Therefore, W.Va.Code § 21A-6-3(1) (1985) would disqualify them from receiving any benefits.

Second, although these employees did not start the strike, when they refused to come to work they were in effect joining the strike and participating in a labor dispute. See, e.g., Ex parte McCleney, 286 Ala. 288, 239 So.2d 311 (1970). Therefore, W.Va.Code § 21A-6-3(4) (1985) would disqualify these workers from benefits.

Third, the workers were not forced to cross the picket line. The “main gate” was open at all times during the strike. They could have walked through that gate to get to their work. Had a fallen tree blocked one gate, we would not have excused the workers for not reporting to work through another gate. A picket line blocking a normal gate should also be no excuse where another gate is open.

For these reasons, I respectfully note my dissent.

I am authorized to state that Justice NEELY joins me in this dissent.