Usher v. Department of Industrial Relations , 261 Ala. 509 ( 1954 )

SIMPSON, Justice.

The petitioner Usher suffered involuntary unemployment from September 30, 1949, to November 13, 1949, and unless he was disqualified under the Alabama Unemployment Compensation Act he was entitled to receive benefits. The pertinent section of the act is:

“An individual shall be disqualified for total or partial unemployment:

“A. For any week in which his total or partial unemployment is directly due to a labor dispute still in active progress in the establishment in which he is or was last employed; for the purposes of this section only, the term 'labor dispute’ includes any controversy concerning terms, tenure or conditions of employment, or concerning the association or representation of persons in negotiations, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment, regardless of whether the disputants stand in the proximate relation of employer and employee. This definition shall not relate to a dispute between an individual worker and his employer.” § 214, Title 26, 1951 Cum. Supp., Code 1940.

The facts out of which the unemployment arose, as found by the trial court and the Court of Appeals, are as follows: The two claimants, Usher and Ross, were employed as railroad engineers in the railroad transportation department of the Tennessee Coal, Iron and Railroad Company. United Steel Workers of America, affiliated with the CIO, was the bargaining agent for local unions Nos. 3362, 1733, and 2210. These two claimants, as well as other employees of this company in the railroad transportation department, were members of other unions not connected with or associated with the United Steel Workers of America and the CIO. Moreover, there were still other employees who were not members of any union. There were also other local unions of the United- Steel Workers of America whose members were employees of T.C.I. and engaged in various phases of the company’s manufacturing business. The contracts between T.C.I. and United Steel Workers of America having to do with the terms and conditions of employment of the members of the union which were local unions of the United Steel Workers expired on July 15, 1949. Negotiations failing, a strike was called for July 15, 1949. Such strike was deferred and finally fixed for the time and date of 12:01 A.M., October 1, 1949. On September 30, 1949, T.C.I. began arranging its affairs in anticipation of the strike. Notices, were given the employees of the closing of operations on October 1, 1949. The claimant Usher was given notice about the middle of the afternoon on September 30, 1949, to the effect that his job had been abolished. Usher was a member of the Brotherhood of Locomotive Firemen and Enginemen, not a CIO union and not affiliated with the United Steel Workers of America. There was no controversy at that time between the T.C.I. and Usher or his union with respect to wages or other terms of employment. Neither Usher nor his’union called any strike nor did he or the union take part in any strike on that occasion. Claimant Ross was not a member of any union at the time in question. He was-notified of the abolishment of runs in the railroad transportation department of the company at 10:30 A.M. October 1st — ten- and one-half hours after the strike had begun. There was no controversy between Ross and T.C.I. about wages or any other terms or conditions of employment. There’ was no labor dispute as between him and his employer. The strike did in fact take-place and was not settled until November 13, 1949. T.C.I. did not attempt to operate-during the strike and substantially all of its employees were out of work during that period excepting certain employees whom, fhe striking unions had agreed should not be affected, such as would be reasonably required for protecting the property. For the last ten years the T.C.I. Company, when strikes of this kind had occurred, had not attempted to continue its operations and induce the employees to cross picket lines. There were in fact picket lines lasting throughout the strike at the three gates in Ensley, which were the entrances to the transportation department and other departments. At the conclusion of the strike operations were resumed and the men, including the claimants, returned to work.

The petitioner here, citing Department of Industrial Relations v. Drummond, 30 Ala. App. 78, 1 So.2d 395, 398, contends that where, as instantly, the claimant or his agent or union does not participate in the labor dispute causing the unemployment, he is entitled to receive the benefits. We find the following statement in the majority opinion of the Drummond case, supra, authored by the writer of this opinion when on the Court of Appeals: “The conclusion is inescapable that 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 defendant, on the other hand, urges that the above-quoted view expressed by the Court of Appeals in the Drummond case was in the nature of dictum and is not binding. In this the Court of Appeals concurred and so wrote.

The facts in the Drummond case were, briefly: Drummond was an employee of T. C.I. Company. At his place of employment there were also employed members of the United Mine Workers of America. When it became apparent that the T.C.I. Company would not sign a work pending agreement containing certain provisions and that the members of the United Mine Workers of America would not work after March 31, 1939, unless the work pending agreement was executed, the T.C.I. Company posted suspension of operation notices. Drummond was not a member of the striking union and did not participate in the strike, but was idle during the strike. In explanation of the complete shutdown, the vice-president of the employing company stated that experience with previous strikes led them to believe that an attempt to operate would in all probability have led to violence, inasmuch as there were two unions in the coal mines. In the majority opinion of the Drummond case it was first stated 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 trial court therefore, in our opinion, correctly held, and this court also finds the fact to be, that appellee’s unemployment was not ‘directly due to a labor dispute still in active progress in the establishment in which he is or was last employed.’ ”

And continuing, it was next observed:

“True, the origin of the disaffection may have been the trade dispute or disagreement between the employer and the United Mine Workers of America, but to us the conclusion is inescapable that 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. To conclude otherwise, it appears to this court, would be to defeat the true and beneficent purposes of the statute and convert that statute into a sham and a mockery with respect to those industrial employees, as appellee, whom it must have been designed to protect against the hazards of enforced unemployment, the causes of which they were helpless to avoid. If such were not so, then a situation could be conceived and easily executed whereby a few persons could accomplish the unemployment of hundreds of innocent victims, entirely faultless in the matter, and thereby deprive them of compensation benefits which they had bought and paid for.”

Thus it is clear that the decision in the Drummond case was based on two distinct grounds, not just the. one, viz., that the claimant’s unemployment was ruled as not directly due to a labor dispute because of a lockout by the employer.

Where there are two independent reasons given for decision, each is a ruling on the case and neither one is to be considered mere dictum. There is no more reason for calling one ground a real basis for decision than the other. Each is a judgment of the court and of equal validity with the other. Union Pac. R. Co. v. Mason City & Ft. Dodge R. Co., 199 U.S. 160, 26 S. Ct. 19, 50 L.Ed. 134; U. S. v. Title Ins. & Tr. Co., 265 U.S. 472, 44 S.Ct. 621, 68 L.Ed. 1110; Armstrong v. Armstrong, 85 Cal.App.2d 482, 193 P.2d 495; Woodward v. Pacific Fruit & Produce Co., 165 Or. 250, 106 P.2d 1043, 131 A.L.R. 832; Coombes v. Getz, 217 Cal. 320, 18 P.2d 939; Jones v. Mutual Creamery Co., 81 Utah 223, 17 P.2d 256, 85 A.L.R. 908. The conclusion is obvious. The above-quoted views expressing the majority opinion of the Court of Appeals in the Drummond case was the judgment of the court and was not, as urged by the defendant and so considered by the Court of Appeals, mere dictum. On certiorari, 241 Ala. 142, 1 So.2d 402, the Supreme Court in the Drummond case, in denying the writ, stated: “Upon consideration of this cause the conclusion is reached that the majority opinion of the Court of Appeals written by Judge Simpson [the rehearing opinion was per curiam] correctly interprets the Act in question, Gen. Acts 1935, p. 950, as applicable to the facts therein stated, and that no further discussion is here necessary.”

In the Drummond case the claimant’s eligibility for benefits was governed by the Alabama Unemployment Compensation Act, General Acts 1935, No. 447, p. 950, which law was in effect at the time of the strike. And the court was interpreting the disqualification clause, § 6d of this act, quoted supra. The opinion in the Drummond case was delivered February 4, 1941. On September 21, 1939 (before the opinion in the Drummond case), an amendment to the 1935 Unemployment Compensation Act became effective. General Acts 1939, No. 497, p. 721, 736. The amended section is as follows :

“B. Disqualification for Benefits. An individual shall be disqualified for benefits for total or partial unemployment : — (a) For any week in which his total or partial unemployment is directly due to a labor dispute still in active progress in the establishment in which he is or was last employed; for the purposes of this subsection only, the term ‘labor dispute’ includes any controversy concerning terms, tenure or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment, regardless of whether the disputants stand in the proximate relation of employer and employee; provided that nothing in this subsection contained shall be applicable, either as an expression of policy or otherwise, to any claim on account of unemployment which shall have occurred in any week prior to the effective date hereof; this definition shall not relate to a dispute between an individual worker or his employer.”

And although in 1943 the Alabama Unemployment Compensation Act was again amended, Gen.Acts 1943, No. 310, p. 281,. 291, we find that § 8 of the act of 1943 reenacts the disqualification provision as amended in 1939. Again in 1949 and 1950— 51, the legislature reenacted the disqualification provisions as amended in 1939. Gen. Acts 1949, No. 526, p. 806; Gen.Acts 1950— 51, No. 565, p. 990. As aforementioned, the 1939 amendment preceded the Drummond decision by sixteen and one-half months. Necessarily, the Drummond decision cannot be considered as provocative of the 1939 amendment.

It is urged that the 1939 amendment to the labor dispute provisions brought about a change in the law as pertinent to the facts at bar and that the amendment had the effect of changing the rule in the Drummond case, which was that a claimant would not be denied the benefits of the law because of a labor dispute in which he was in no way involved. In this we find ourselves in disagreement with learned counsel. An examination of the 1939 amendment discloses that the only changes wrought were a defining of the term “labor dispute” which had been undefined in the 1939 act, and the clause “an employee shall not be eligible” was amended so as to read “an individual shall be disqualified”. The defendant contends that the legislature by providing that an “individual” rather than an “employee” removed what on rehearing in the Drummond case was said to be not so unambiguous as to preclude application of known rules of construction. It is to be first noted that the Supreme Court on certiorari in the Drummond case referred only to the majority opinion on original deliverance of the Court of Appeals by Simpson, J., and not to the per curiam opinion on rehearing. But in any event, the rationale employed in the rehearing opinion with regard to the word “employee” is equally applicable to the word “individual.” The same ambiguity arises as to the use of both words, namely, individuals not involved as well as those concerned in the controversy. It is our opinion, therefore, that the 1939 amendment did not have the effect of overruling the doctrine of the Drummond case. As pointed out above, the legislature has on three occasions reenacted the pertinent provisions. The reenactment of a statute which has been judicially construed is an adoption of the construction. Ex parte State ex rel. Lawson, 237 Ala. 591, 188 So. 242; Nolen v. Clark, 238 Ala. 320, 191 So. 342; Law v. State, 238 Ala. 428, 191 So. 803.

The case of Badgett v. Dept. of Industrial Relations, 30 Ala.App. 457, 10 So.2d 872, certiorari denied 243 Ala. 538, 10 So.2d 880, is clearly distinguishable from the case at bar. In the Badgett case a jurisdictional controversy between rival unions arose and the unemployment of the claimant was directly caused by a dispute between the claimant’s union and a rival organization still in active progress in the same establishment.

Appellee (respondent here) calls our attention to the case of Tennessee Coal, Iron & R. Co. v. Martin, 33 Ala.App. 502, 36 So.2d 535, 536, wherein the claimant was a coal miner who belonged to the United Mine Workers of America (A.F. of L. at that time) ; the men employed in the coal mines at the T.C.I. Company were working peaceably under a contract and were not on strike and were not negotiating a new contract; they were not, in fact, having any discussion with the employer. The employees belonging to the United Steel Workers of America (CIO) and the ore miners belonging to the International Union of Mine, Mill and Smelter Workers (CIO) went on strike. The coal miners did not participate and were not responsible, but the strike of the aforementioned two unions prevented the operation of the coal mines and all other units of the T.C.I. Company. The lower court held that the claimant (the coal miner) was entitled to compensation. Upon appeal to the Court of Appeals, the majority opinion of that court stated:

“In his [dissenting] opinion Judge Bricken states that ‘The parties also seem to be in accord that the strike above referred to was a labor dispute within the meaning of such section/ We are unable to accord to the contentions of appellees’ counsel, urged in oral argument and in briefs filed, the conclusion reached by Judge Bricken as to such accord. As we interpreted the argument and briefs of counsel representing the appellees they strenuously contend that there is no labor dispute within the meaning of our statute and judicial interpretations thereof.

“However, since the 1939 Amendment to Section 214, subd. A Title 26, Code of Alabama 1940, defining a ‘labor dispute’ as the term is defined in National Labor Relations Act, 29 U.S. C.A. § 151 et seq., and the NorrisLaGuardia Act, 29 U.S.C.A. § 101 et seq., it is our opinion that appellees’ unemployment was directly due to a labor dispute. Section 214, subd. A supra. Badgett v. Department of Industrial Relations, 30 Ala.App. 457, 10 So.2d 872; [Id.] 243 Ala. 538, 10 So.2d 880; New Negro Alliance v. Sanitary Grocery, 303 U.S. 552, 304 U.S. 542, 58 S.Ct. 703, 82 L.Ed. 1012; Lauf v. E. G. Shinner & Co., 303 U.S. 323, 58 S.Ct. 578, 82 L.Ed. 872.

“It is our opinion therefore that lower court erred in its reasoning that appellee’s unemployment did not result directly from a labor dispute.”

It appears that the majority of the court were in disagreement with Judge Bricken’s conclusion that the parties were in accord on the question of whether or not there was in fact a labor dispute. It also seems from the above-quoted paragraphs that the Court of Appeals was holding that under the facts and the 1939 Amendment to § 214, Title 26, there did exist a labor dispute; and so such case may not be authority for a holding that the claimant’s unemployment was directly due to a labor dispute. An examination of the cases cited by the Court of Appeals in the Martin case as authority for the statement, “appellee’s unemployment was directly due to a labor dispute”, adds weight to this conclusion, for the reason that in each of the three cited cases the pivotal question involved was whether or not a labor dispute in fact existed.

On the other hand, if the last-quoted observation by the Court of Appeals in the Martin case is construed to be inconsistent with what was said in the Drummond case, it might well be said that such observation was in the nature of dictum. This for the reason that the Court of Appeals, after recognizing that § 214 of Title 26 requires that in order to disqualify a workman from receiving benefits, the labor dispute must be in active progress and in the establishment in which he is or was last employed, held that the labor dispute was not in the establishment in which the claimant was last employed, and the claimant therefore was entitled to recover. The answer to this single question was decisive of the case; there were not two reasons for holding that the claimant was entitled to benefits, as there were in the Drummond case.

In any event, this court on certiorari specifically left undetermined this “directly due” question, for as was pointed out above, the Court of Appeals in the Martin case did affirm the holding of the trial court allowing the claimants to recover on the ground that the mines in which the claimants were employed were an establishment separate from the establishment in which a labor dispute was in progress, 251 Ala. 153, 36 So.2d 547, 554. In affirming the judgment of the Court of Appeals, this court, speaking 'through the late, lamented Chief Justice Gardner, made the following observations concerning the opinion of the Court of Appeals:

“Reduced to a simple analysis, that opinion [Court of Appeals] merely holds that the coal mines in which there was no labor dispute was an ‘establishment’ within the meaning of our Unemployment Compensation Statute. * =k *

* ❖ * * * *

“In view of the further holding of the Court of Appeals, however, that this complainant’s unemployment was directly due to a labor dispute, it becomes necessary for us to observe that in view of our affirmance of the judgment of the Court of Appeals upon the ground above noted, and upon which that court based its ruling, a discussion and consideration of this question becomes unnecessary and is therefore left to one side.

“Upon the part of the appellee the insistence is that the Drummond case is decisive in their favor and upon that theory the three judge trial court rested its decision. While on the other hand appellant insists that the Drummond case was to be differentiated though it contains dictum supportive of the trial court. Upon this question there may here be a difference of view. Whatever might be said, however, upon that question would itself be dictum, and as a general rule the courts very properly decline to enter into discussions which are not decisive of the case. We merely make these observations to the end that we may not be bound by the holding of the Court of Appeals upon this particular question. It is left here undetermined.”

As we have attempted to illustrate, neither the legislature nor the Supreme Court of this state has changed or modified the rule of the Drummond case; such is the law today and governs this case to the result that petitioner was not disqualified from receiving unemployment compensation.

Reversed and remanded.

STAKELY, MERRILL and CLAYTON, JJ., concur, except MERRILL, J., prefers not to be committed to the view that subsequent amendments to the Act with no change in the considered Section and the 1939 amendment has any persuasive effect on the question.