Roberts v. Gatson

McHUGH, Justice,

concurring, in part, and dissenting, in part:

The majority opinion sets forth sound legal principles. Therefore, I concur in the syllabus points set forth therein. I believe, however, that the majority opinion erroneously applied syllabus points 6 and 7 to the facts of this case. Thus, I dissent to that portion of the opinion which concludes that the employees were not required to accept wages substantially less favorable than those prevailing for similar work in the locality, and, therefore, they were disqualified from receiving unemployment compensation benefits.

This case presents this Court with an opportunity, for the first time, to sharpen the focus of W.Va.Code, 21A-6-3, as amended, relating to the disqualification for benefits section of the West Virginia Unemployment Compensation statute. Specifically, W.Va.Code, 21A-6-3(4), as amended, the section relating to disqualification of benefits for stoppage of work because of a labor dispute is the provision in question. That section, as related to this case, provides, in part, that no disqualification shall be imposed (1) if the employees are “required to accept wages, hours or conditions of employment substantially less favorable than those prevailing for similar work in the locality” or (2) if employees are “denied the right of collective bargaining under generally prevailing conditions[.]”

As noted, however, my primary concern with the majority opinion lies with its interpretation of the language “wages ... substantially less favorable than those prevailing for similar work in the locality[.]”

The following language of the majority opinion raises some unsettling questions and will, no doubt, require additional cases to resolve those questions. “We do not believe that where there is a wage proposal covering a variety of different wage levels, because one wage level is less than the average of the surrounding prevailing wage levels, the entire wage package fails. The statute requires ‘wages ... substantially less favorable.’ ” (emphasis added) Although that language does not appear in a syllabus point, it is the central point of my dissent because that interpretation may adversely influence future collective bargaining processes.

Some fundamental principles bear repeating to keep the resolution of the issue in perspective. Syllabus point 1 of Lee-Norse Co. v. Rutledge, 170 W.Va. 162, 291 S.E.2d 477 (1982), quotes syllabus point 6 of Davis v. Hix, 140 W.Va. 398, 84 S.E.2d 404 (1954): “ ‘Unemployment compensation statutes, being remedial in nature, should be liberally construed to achieve the benign purposes intended to the full extent thereof.’ ” That elementary principle has been repeated many times by this Court. See syl., Gordon v. Rutledge, 175 W.Va. 683, 337 S.E.2d 920 (1985); syl., Pennington v. Cole, 175 W.Va. 562, 336 S.E.2d 210 (1985); Belt v. Cole, 172 W.Va. 383, 385, 305 S.E.2d 340, 342 (1983).

Disqualification provisions of unemployment compensation statutes are to be narrowly construed. Gordon v. Rutledge, 175 W.Va. 683, 684, 337 S.E.2d 920, 922 (1985); Bennett v. Hix, 139 W.Va. 75, 84, 79 S.E.2d 114, 119 (1953).

Given the liberal construction as a whole of the statute and the narrow construction of the disqualification provisions of the statute, I believe that the majority opinion has, in this opinion, rechanneled the direction of the statute.

W.Va.Code, 21A-6-3(4), as amended, does not use the term “average” in referring to wages “substantially less favorable.”

Although the majority resolved the issue in this case, I fear the “averaging” concept adopted by the majority in the case will result in serious points of dispute between employees and employers. Within a factory, as in this case, there are employees at several different wage levels. Those wage levels doubtless reflect the skill required in each job. The higher the skill, the more the pay. Also, generally the higher the skill, the more the demand. Employees have the right to bargain for prevailing wages in each of those levels. The language used, however, in the opinion will cause confusion because of the possibility of differing interpretations that may be placed on it. For example, in this case, there were eighteen wage levels. What if there was agreement on ten, but not on the other eight. Would employees be compelled to accept the ten and forget the eight? How many wage levels must be less than the average? More importantly, averaging is not the requirement of the statute. Employees have the right to seek “prevailing” wages, not “average prevailing” wages. Does “average prevailing” wages suggest that the current level of wages paid by the employer in question is to be considered in calculating the prevailing wage rate? I reiterate my concern that employees will be forced to accept wage packages that are unsatisfactory lest they risk losing unemployment compensation benefits.

I do not believe the legislature intended such a result. In fact, such an interpretation may slow labor negotiations for fear of getting caught in the “average” net.

Therefore, although I concur with the majority opinion in its syllabus points, and respect the quality of legal research by the majority writer, I dissent to what I believe is a flaw in the majority opinion.