Summary
In Speagle, this court did hold that a voluntary refusal by an employee to cross a peaceful picket line set up by a union of which claimant was not a member would disqualify him under Tit. 26, § 214(A), where his job remained open to him by his employer.
Summary of this case from Ex Parte McCleneyOpinion
6 Div. 569.
June 10, 1958.
To The Supreme Court Of Alabama:
There is now pending in the Court of Appeals of Alabama the case of D. L. Speagle, et al. v. Department of Industrial Relations, et al., 6 Div. 569, in which Speagle and three others have appealed from a judgment of the Jefferson Circuit Court holding them disqualified from getting unemployment compensation by reason of the operation of Code 1940, T. 26, § 214, subd. A, as amended.
During the period July 29 to August 11, 1955, the conductors employed in the rail transportation part of the T.C.I. Division of the U.S. Steel Corporation in Jefferson County were on strike.
This strike caused many parts of the U.S. Steel Corporation's steel making activities to cease operating, since the corporation uses rail transportation for carrying many of its raw materials (e. g., coal and iron ore) and semi-finished products (e. g., molten iron and blooms) to and from the various places of processing. There was no evidence of any substantial substitute means of transportation. Picket lines were thrown up at many of the corporation's entrances, including gates to places of work other than those used customarily by railroad workers. Not all of the corporation's work was stopped.
The following abstract questions are certified to your court for an opinion as guidance to our court in said cause, viz.:
1. Under Code 1940, T. 26, § 214, subd. A, as amended, does an employee of an employer against whom there is pending a labor dispute (involving other employees) in active progress at the establishment of his employment become disqualified if he refuses to cross a peaceful picket line in order to report to work?
2. If the answer to the first question is in the affirmative, would there be a different answer if the place of work at which the picket line stands was not in the same "establishment" as that in which the dispute existed?
3. Is the refusal to cross a picket line by a non-striking employee who does so because of his adherence to a tenet of his trade unionism a ground for disqualification under § 214, subd. A, as amended, supra?
4. Is an employee's statement of his apprehending violence to his person, if he were to cross a picket line, legal evidence; and, if so, is such apprehension (without further evidence of anticipated violence) which leads to his refusal to cross a picket line (thrown up by a union to which he does not belong) before his working establishment sufficient and good ground to remove the disqualifying effect of said § 214, subd. A, as amended, supra?
The foregoing questions are certified to your Honorable Court for its opinion as to each, under and by virtue of the authority conferred by Code 1940, T. 13, § 88, which reads as follows:
"If the judges of said court are unable to reach an unanimous conclusion, or decision, in any case or matter before them, any one of said judges may certify to the supreme court any question or questions of law as to which said judges differ, stating such questions as abstract propositions, and the supreme court shall give its opinion upon the question so certified, and the opinions thus given by the supreme court shall be given the same effect by said court of appeals as it is required to give to the decisions of said supreme court."
The judges of this court are unable to reach an unanimous conclusion in the said case before them. This certification may be considered by you as superseding that made in our certification of these questions heretofore sent you on December 2, 1957.
For your convenience the record in this court is forwarded to you with this request.
Dated this the 28th day of February, 1958.
Respectfully submitted,
ROBERT B. HARWOOD Presiding Judge
ANNIE LOLA PRICE Judge
AUBREY M. CATES, Jr. Judge
Response to Questions Certified by the Court of Appeals.
The following is in response to your inquiry propounded to this Court under authority of section 88, Title 13, Code.
Your inquiry seeks a construction of section 214, subd. A, Title 26, as amended, pocket part, Code, in respect to a refusal by an employee to cross a picket line during a strike.
We think a few observations are pertinent before answering your questions in that connection. Attention is directed to the absence from section 214, subd. A, supra, of any reference to the act of crossing a picket line during a labor dispute.
It is observed that to disqualify an employee for receiving unemployment benefits on account of a strike, his unemployment must be "directly due" to a labor dispute still in active progress in the establishment in which he is or was last employed. Section 214, subd. A, Title 26, pocket part, Code. Emphasis is placed upon the words "directly due". This is referred to and applied in Department of Industrial Relations v. Drummond, 30 Ala. App. 78, 1 So.2d 395, 397, certiorari denied 241 Ala. 142, 1 So.2d 402, as follows:
"It thus appears that, because of the apprehension of the employer company that to allow some employees to work when others (the C.I.O. affiliates) were on strike would result in violence, the appellee was locked out of work by the published notices and close down of the Wylam Mine. This, therefore, was the direct cause of appellee's unemployment and not the 'labor dispute' in which the C.I.O. affiliates were involved."
"* * * the Legislature never intended that one, who has purchased his protection against involuntary unemployment, should be denied those benefits because of a 'labor dispute' in which he was in no way involved and the causes of which unemployment he, his agents or organization were powerless to avert."
The Court of Appeals held in the Drummond case, supra, that section 214, subd. A, supra, does not serve to disqualify employees for unemployment benefits when their unemployment results from a shut down of the operations in which such employee has been engaged, and when the shut down of those operations is the result of an apprehension by the employer that there would be violence if there was an attempt to operate during the labor dispute and strike in which the complaining employees did not participate.
The same theory was recognized in Usher v. Department of Industrial Relations, 261 Ala. 509, 75 So.2d 165. See, also, T. R. Miller Mill Co. v. Johns, 261 Ala. 615, 75 So.2d 675, 680.
Attention is called to the following statement in the Johns case, supra: "It thus appears that it (section 214, subd. A) contains all the disabilities (disqualifications?) that the legislature intended to impose because of a labor dispute". Attention is also directed to a feature of the quotation from the Drummond case, supra, which declares in substance that an employee has purchased the right to unemployment benefits not to be denied him on account of a labor dispute "in which he was in no way involved and the causes of which unemployment he, his agents or organization were powerless to avert."
The Drummond, Usher and Johns cases, supra, are clear and distinct to the effect that subsection A of section 214 does not disqualify an employee for such benefits by reason of a labor dispute unless he is directly involved in the dispute. Such unemployment would not be directly due to a labor dispute if his employer closed the shop, in which he was engaged, on account of his fear that violence would result, even though such closing was directly due to the peaceful picketing which in turn was directly due to a labor dispute in which the claimant was not involved.
There are many cases which hold that the refusal to cross a picket line to go to work does disqualify an employee for benefits, when such refusal does not result from a well-founded apprehension of personal violence to do so, and his job continues to be open to him, because such is a "participation" in a labor dispute which under the statute disqualifies one for so doing. Baldassaris v. Egan, 135 Conn. 695, 68 A.2d 120; American Brake Shoe Co. v. Annunuzio, 405 Ill. 44, 90 N.E.2d 83; Aitken v. Board of Review, 136 N.J.L. 372, 56 A.2d 587. See, also, 28 A.L.R.2d 333.
Inquiry No. 1.
We think that a voluntary refusal by an employee to cross a peaceful picket line set up in a labor dispute by some union, of which claimant is not a member, to work on a job still open to him by his employer, disqualifies an employee, while so doing, for unemployment benefits under section 214, subd. A, Title 26, pocket part, Code.
Inquiry No. 2.
We think inquiry No. 2 is governed by the same principles stated above; and, therefore, the answer to inquiry No. 2 is No.
Inquiry No. 3.
Assuming that his refusal to cross the picket line is solely because of his adherence to a tenet of his trade unionism, we answer Yes.
Inquiry No. 4.
In answer to this question it is our opinion that an employee's statement of his apprehension of violence to his person if he were to cross a picket line would not be legal evidence. McGuff v. State, 248 Ala. 259, 27 So.2d 241.
All the Justices concur.