Copen v. Hix , 130 W. Va. 343 ( 1947 )

After careful consideration of the record, I respectfully dissent from the opinion of the majority of the Court in holding that the Board of Review of the West Virginia Department of Unemployment Compensation was justified in its finding that claimants did not sustain the burden of proving that they were not "(one) participating, financing or directly interested in" the labor dispute between the supervisors' union and C. H. Mead Coal Company, "and (two) did not belong to a grade or class of workers which was participating, financing or directly interested" in such dispute.

With deference I entertain the opinion that the majority of the Court has not given proper weight to the benign purposes of the Unemployment Compensation Law (Acts, West Virginia Legislature, 1943, Chapter 76), as expressed by the Legislature in Article I, Section 1 of the Act, as follows:

"The purpose of this chapter is to provide reasonable and effective means for the promotion of social and economic security by reducing as far as practicable the hazards of unemployment. In the furtherance of this objective, the legislature established a compulsory system of unemployment reserves in order to

"(1) Provide a measure of security to the families of unemployed persons.

"(2) Guard against the menace to health, morals, and welfare arising from unemployment.

"(3) Maintain as great purchasing power as possible, with a view to sustaining the economic system during periods of economic depression.

"(4) Stimulate stability of employment as a requisite of social and economic security.

"(5) Allay and prevent the debilitating consequences of poor relief assistance."

Thus we see that the Act is not only remedial in its nature, but it conserves the public good and general welfare. By legislative fiat its purpose is the protection of those engaged in labor from the disaster of casual unemployment. Properly construed and applied, it serves to deaden the impact which such unemployment will have from time to time upon the economic structure of the State and Nation. The Act should, therefore, be liberally construed and applied. Lewis' Sutherland Statutory Construction, 2d Ed., Section 582. And this is so though the unemployment compensation benefits are financed by the employer, and therefore the statute has some of the attributes of a tax law. 3 Horack, Sutherland Statutory Construction, 3d Ed., Section 7211. The Court of Appeals of Georgia inYoung v. Bureau of Unemployment Compensation, 63 Ga. App. 130,10 S.E.2d 412, in construing a preamble setting out the purpose of the Georgia Act, which has the same purport as the West Virginia Act, said: "The courts, as well as the administrator of the unemployment law, in construing and applying the provisions of such law, must liberally construe and apply such law in the light of the public policy of this State as declared in Section 2 of the act. The Court shall be guided by the fact that the unemployment compensation law is intended to provide some income for persons who are, without any fault of their own, temporarily out of employment." The Supreme Court of Washington in Wicklund v. Commissioner of Unemployment and Placement,Groves v. Same, 18 Wash. 2d 206, 138 P.2d 876, said: "The Legislature never intended that unemployment compensation should be denied to employees because of a labor dispute which they did not initiate or further, the cause of which unemployment they and their independent organization were powerless to avert." See generally Miners in General Group v.Hix, 123 W. Va. 637, 657, 17 S.E.2d 810, and the dissenting opinion at page 658.

With the foregoing principles in mind, it is quite difficult for me to see how the trial court, under the facts contained in this record, arrived at its finding that the claimants participated in a labor dispute between the supervisors and the coal company. On the contrary, I am of opinion that the claimants clearly and affirmatively sustained the burden of proof that there was no such participation on their part. True, there was a work stoppage on March 30, 1944, but it was a work stoppage growing out of a labor dispute between members of the supervisors' union and the coal company. This record clearly shows that on the day of the work stoppage and throughout the period thereof, there was no dispute or controversy of any kind between the coal company and the local union (Local No. 6109), or its members. Claimants testified that there was no such dispute, though the work stoppage came about over a lack of supervision at the mines of the coal company which, in turn, was caused by a controversy between the supervisors and the company. In this regard it may be well to state that Local No. 6109 is an affiliate of District No. 29 of the United Mine Workers of America, which district comprises a number of local unions whose members are mine workers, as distinguished from supervisors, and the members of the supervisors' union, known as United Clerical Technical Supervisors' Union, is an affiliate of District No. 50 of the United Mine Workers of America, which is composed of unions, none of which has mine workers as members. The uncontradicted affidavit of John McAlpine is to the effect that the supervisors' union is autonomous. There is no connection with the local union of which claimants are members and the supervisors' union.

In support of the judgment of the circuit court an effort is made to show the structure and make-up of the United Mine Workers of America by reference to the statement of facts contained in the decision of the National Labor Relations Board in In re Jones Laughlin Steel Corporation, 66 N. L. R. B. 386, 17 L. R. R. N. 304, but that case is independent of the one under consideration and the matters contained in the former have no place in this record, and should not have been relied upon in the appraisal of the instant case.

Now, what are the facts bearing on the question whether claimants participated in the dispute? The word "participating," as used in the statute, involves the element of affirmative activity. Black's Law Dictionary, Third Ed., 1328; 31 Words and Phrases, Perm. Ed., 132-134, inclusive;Martin v. Mutual Life Ins. Co. of New York, 189 Ark. 291,71 S.W.2d 694. If these claimants had struck in sympathy with the supervisors, of course, they would have participated, but that is not the situation disclosed by this record. Mine No. 3, in which claimants worked as coal cutters, was not fire bossed after April 1, 1944, until in response to a notice posted by the coal company, claimants returned to work on April 17, 1944, under a new set of supervisors. This latter date seems to be the first date upon which sufficient supervisory forces were available at that mine. It is from the testimony of officials of the coal company that I draw the conclusion that there was not sufficient supervision of the mine during the time of the work stoppage, and in the absence of which, the failure of claimants to work would not of itself be a participation in the independent labor dispute. The superintendent of the coal company, Scholl, testified that on March 30, 1944, of approximately forty men, who prior to that time were engaged in the supervision of the mine, all but six quit work and did not return until after April 17, 1944, when some of them at least returned and replaced the new supervisors. Even at the time the superintendent was testifying there were in mine No. 3 thirty to thirty-five certified men employed. It seems reasonable to say that if thirty or forty certified men were required adequately to supervise the mine, six would not be sufficient to operate the mine properly. But this is not my opinion alone. Edward Stanley, an assistant superintendent and safety director for the coal company, testified that during the period of work stoppage there were not sufficient certified men to take care of the work "adequately." If, in the opinion of the safety director, who evidently is a man experienced in the field of his endeavor, supervision of the coal company's mines was inadequate during the time of the work stoppage, it seems indeed unjust that miners who, by reason of the relative status of the two groups, would naturally rely upon the foremen for directions, should be compelled to enter the mine and mine coal without proper supervision, or failing to do so should risk losing their unemployment compensation benefits which are given to them under the benign provisions of the statute. This is particularly true in the instant case, because the coal company's mines are gaseous and inherently dangerous.

But in addition to the foregoing, as heretofore suggested, mine No. 3 was fire bossed only on March 30, 1944, and two days thereafter. In this State where a mine is not fire bossed a red signal is required to be placed outside the mine near its mouth. In fact, Code, 22-2-46, provides that it is unlawful for any person to enter a mine at the beginning of work on each shift until such signal has been given by the fire boss or bosses on the outside of the mine or mines as to the safety thereof, except "under the direction of the fire boss or bosses, and then for the purpose of assisting in making the mine safe." Under this section of the Code it is a misdemeanor to enter a mine in the absence of such signal or direction by the fire boss or person authorized to do fire boss work. After the third day of the work stoppage there was no signal or direction to the effect that the mine was safe, and it would have been unlawful for claimants to enter the mine. Surely they were not to be compelled to commit a statutory misdemeanor as a condition precedent to the allowance of compensation.

But the coal company suggests, and its officials testified, that though there were not sufficient certified men during the work stoppage period to supervise properly the mine, uncertified men could be used under the direction of the certified men available. On the basis of this evidence it is contended that the coal company was always ready to furnish sufficient supervision for the "rank and file" miners. That may be true, but, nevertheless, the proper servicing of the mine and the furnishing of a sufficient supervisory force to render the mine comparatively safe, is a condition precedent to the duty of the men to proceed to mine coal. That the coal company was not prepared, or at least did not furnish sufficient supervisory force prior to the men entering the mine, is shown by the uncontradicted testimony of two witnesses. Clarence Perdue went to work on March 30, 1944, and though the man trip was not run, he entered the mine and proceeded to work, but a Mr. Boggess, a general mine foreman, sent him out of the mine because there were no "bosses" present. Hustie Ward also entered the mine on March 30 for the purpose of shooting coal. He had the coal upon which he was working almost shot down, when John Caters, a fire boss, told him there would be no work because there were no "bosses" that morning. Neither Boggess nor Caters was called as a witness in contradiction of this testimony, though their absence is not explained.

This record discloses that claimants appeared for work on March 30, 1944, and found that a sufficient supervisory force was not available, and thereafter on occasions they made inquiry concerning work and were told there was no work. Claimants testified that they asked Lester Eller, the mine foreman for mine No. 3, whether work was available and were told by him that there was no work. Eller testified generally that he does not recall having any conversation with claimants concerning work. During the whole course of the work stoppage period claimants held themselves available for work, and promptly returned to work under new supervisors immediately after the posting by the coal company of notice that sufficient supervisory forces were present. If they were striking in sympathy with the old supervisors, why, it may be asked, did they return to work immediately upon posting of the notice, though the certified men who struck had not then been reemployed? So I do not think claimants' absence from work during the period in question constitutes participation in the controversy between the supervisors and the coal company.

Claimants, in my opinion, were not financing the independent labor dispute which existed during the work stoppage. The fact that part of the dues paid by the members of Local No. 6109 and the supervisors' union went into the treasury of the United Mine Workers of America is not such financing, in my opinion, as is contemplated by the statute. In fact, this record does not disclose that a single penny of that money was diverted to finance the dispute.

Likewise the position that these claimants were directly interested in the dispute cannot be sustained, in view of the express language of the statute. The qualifying word "directly" precludes any idea that an interest which would preclude claimants under the statute is merely sympathy or an abstract attitude of the mind. If that had been the intendment of the Legislature, the qualifying word would not have been used. Moreover, as indicating a clear legislative intendment that the word "directly" qualifying the word "interested" should be given significance, it is to be noted that in clause (one) of Chap. 1, Art. 6, Sec. 4, Acts, 1936, 2d Ex. Sess., uses the words "or interested in such dispute," which clause was amended, Acts, 1937, by inserting in said clause the word "directly" in qualification of the word "interested." The interest contemplated by the statute must be active, direct and concrete. It must be in furtherance of the dispute by participation or activity therein by claimants, and must be prompted by a desire to secure higher wages, better working conditions, or some other material interest in the success of the dispute. In Wicklund v. Commissioner ofUnemployment Compensation and Placement, supra, the Supreme Court of Washington said: "The words ``directly interested in the labor dispute' are clearly limited in their application to those employees directly interested in furtherance of the dispute by participation and activity therein." In KieckheferContainer Co. v. Unemployment Compensation Commission,125 N.J.L. 52, 13 A.2d 646, the Supreme Court of New Jersey gives the same import to the words "directly interested" as was given by the Court in the Wicklund case.

On the question of the interpretation of the words "directly interested," I do not think the fact that Nick Aiello, vice-president of District No. 29, who was deceased at the time of the hearing, spoke at meetings of the supervisors, at which he stated that the coal miners would cooperate with them for the purpose of effecting an organization, and on another occasion told the supervisors to go home and forget it, should bind these claimants. They were not present on those occasions. Local No. 6109, so far as this record is concerned, did not authorize him to speak for it; he simply held the office of vice-president of District No. 29, and, for all this record discloses, he may have been talking and acting on his own volition.

But, finally, it is contended in opposition to the instant claims that claimants belong to a grade or class of workers who are participating, financing or directly interested in the labor dispute which has resulted in a stoppage of work. In this regard I do not agree with the majority opinion that the fact that District No. 29 and District No. 50 are affiliated with the United Mine Workers of America makes these claimants of the same grade or class of workers as the members of the supervisors' union. The statute says nothing about membership in a union, but specifically qualifies the words "grade or class" by the words "of workers." When the Legislature used the words "of workers," it expressed the intention that the difference in work and not in union membership is the controlling factor. It is reasonable to assume that the work of the supervisors is different and separate from the work of coal miners. By the very difference in the status of the two groups, the members of one group are necessarily over the other. To the effect that grade or class of workers, as used in the statute, does not justify the finding of the board of review on the immediate question, seeKieckhefer Container Co. v. Unemployment CompensationCommission, supra. See also Webster's International Dictionary, Second Edition, Unabridged, page 10085, and 18 Words and Phrases, Perm. Ed. 606. To say that because the two districts are affiliated with the United Mine Workers of America makes claimants of the same grade and class of workers with the supervisors is in derogation of the autonomy of the two districts and the two local unions, disclosed by this record, and, in my opinion, is in the teeth of the language and clear intendment of the statute.

From the foregoing it can be seen that I am not in accord with the third point of the syllabus, which practically makes union membership, as distinguished from grade or class ofworkers the controlling factor in the case. Under that point of the syllabus where parties seeking benefits under the Unemployment Compensation Law organize themselves for a common purpose, they are precluded from compensation whether that purpose is participating, financing or directly interested in a labor dispute, or some other sphere of activity.

The foregoing disposes of the question decided by the board of review. Neither that board nor the circuit court passed on the question whether claimants "left work voluntarily without good cause, involving fault on the part of the employer * * *." (Subsection 1, Section 4, Article 6, Unemployment Compensation Law). A finding on that question should have been made by the board of review and by the circuit court. This Court in the first instance should not determine non-jurisdictional questions which have not been acted upon by the court below. Nuzum v. Nuzum, 77 W. Va. 202, 87 S.E. 463;State v. Sanney, 91 W. Va. 477, 113 S.E. 762; Vecellio v.Bopst, 121 W. Va. 562, 6 S.E.2d 708; Billings v. State Comp.Comr., 123 W. Va. 498, 16 S.E.2d 804. Nevertheless, as the majority of the Court in its opinion addressed itself to that immediate question, I take the liberty to say now, as I have heretofore indicated in this dissent, that claimants during the period of work stoppage were prevented from working through no fault of their own, and in general belong to that group of workers which the statute is designed to protect. Miners inGeneral Group v. Hix, supra, page 657.

For the foregoing reasons I would reverse the judgment of the Circuit Court of Kanawha County, in affirming the action of the board of review.

Judge Lovins authorizes me to say that he joins in this dissent.