Cruz v. Department of Employment Security ( 1969 )

HENRIOD, Justice:

Review of defendant’s decision that plaintiff employee was disqualified from receiving benefits under Title 35-4 — 5(d), Utah Code Annotated 1953.¹ Affirmed with no costs awarded.

Mr. Cruz was employed by Kennecott Copper for 12 years between 1955 and July 15, 1967, and thereafter, as a heavy equipment operator. He was a member of Operating Engineers Local #3." On July 15, 1967, the United Steelworkers went out on strike against Kennecott, and Cruz refused to cross the picket line. Some time in 1966 he had gone to work for Pioneer Sand & Gravel, performing bulldozer work for that company, which work was seasonal as the facts reflect. This work that he performed for the sand company paid about the same hourly rate, but did not have the fringe benefits incident to his employment with Kennecott. It was in addition to that he performed for Kennecott, and was undertaken to pay the expenses of his hospitalized son,' — which is most commendable.

On April 20, 1967, less than three months before the strike, he went with the sand company on an eight-hour basis, in addition to his work with Kennecott. He continued on with the sand company after the strike until December 20, 1967, when he was laid off because of inclement weather. He did not quit his job with Kennecott, and he returned to work there after about three months’ unemployment after leaving the sand company. From the inception of the strike until final settlement (eight months) he retained his seniority rights and other benefits incident to his employment with Kennecott, he himself paying premiums on his group insurance policy, etc. He had no such rights or obligations, and no such fringe benefits with the sand company. He conceded he would return to Kennecott when and if the strike were settled, which be did. Under the facts of this case there seems to be no question as to an uninterrupted employee-employer relationship² during the strike, although there was a work stoppage. It was a sort of forced sick leave without pay, with a shortage of Steelworker-Kennecott contractual balm or medication.

The question arises as to whether an employee out on strike against his employer and who takes a job after the strike with another employer, is qualified for benefits if the latter employer lets him go for some reason with which the employee had nothing to do. Generally, paraphrasing the statement in Scott v. U. C. C.³ in showing qualification for benefits the applicant must 1) show he is not disqualified, 2) that the fact of employment after the strike alone does not sustain such burden, 3) the new employment must be intended to be permanent, with an intention not to return to his former employment, 4) must be in good faith and of a type the employee performed theretofore, S) accomplished and undertaken by complete severance from his former employment.⁴

'Applying the guidelines above, we can come to no other conclusion except had Cruz gone with the sand company after the strike, such employment would not have made him eligible after being let out by the sand company, under the facts of this case, the guidelines mentioned and the authorities cited. The circumstance of double employment at the time of the strike under the facts and concessions here, should not serve to transmute disqualification into qualification. It takes little imagination to conclude that were we to decide otherwise, dozens or more employees, anticipating a strike, by the simple device of obtaining a second job a week or so before the strike, with a subsequent reduction in force by the second employer, could become eligible for benefits. We do not believe such a conclusion would be compatible with the letter and spirit of the statute.

CALLISTER, TUCKETT and EL-LETT, JJ., concur.

1 . “An individual shall be ineligible for benefits * * * (d) For any week in which, it is found by the commission that his unemployment is due to a stoppage of work which exists because of a strike involving his grade, class, or group of workers at the factory or establishment at which he is or wets last employed.” (Emphasis supplied.) See Lexes v. Indust. Comm., 121 Utah 551, 243 P.2d 964 (1952).

2 . Jeffery-De Witt Insulator Co. v. N. L. R. B. (4th Circ. 1937), 91 F.2d 134, 112 A.L.R. 948; Burger v. Unemp. Comp. Bd. of Rev., 168 Pa.Super. 89, 77 A.2d 737 (1951).

3 . 141 Mont. 230, 376 P.2d 733, 734 (1962).

4 .Mark Hopkins, Inc. v. Calif. Emp. Comm., 24 Cal.2d 744, 151 P.2d 229, 154 A.L.R. 1081 (1944) ; Oluschak v. Unemp. Comp. Bd., 192 Pa.Super. 255, 159 A.2d 750 (1960). We believe Bruley v. Florida Ind. Comm., 101 So.2d 22 (Fla.App.1958), distinguishable, but assuming not, it would express the minority position.