Constellium Rolled Products Ravenswood, LLC v. Cooper (Justice Wooton, dissenting) ( 2021 )

FILED
November 5, 2021
released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
No. 20-0486 – Constellium Rolled Products Ravenswood, LLC v. Cooper et al. and
Workforce West Virginia Board of Review
WOOTON, J., dissenting:
The central issue in this appeal is whether the 2012 United Steelworkers
Union strike at Constellium’s Ravenswood aluminum manufacturing plant resulted in a
work stoppage under West Virginia Code § 21A-6-3(4) (2012) such that the striking
employees could be denied unemployment compensation benefits. With full knowledge
of the 51% reduction in aluminum plate production and the 38% reduction in aluminum
coil production Constellium suffered during the strike, a Labor Dispute Tribunal clearly
found that there was no work stoppage under that statute. The Board of Review for
Workforce West Virginia and the Circuit Court of Kanawha County both affirmed,
agreeing that the facts presented failed to establish a “substantial curtailment” of
Constellium’s normal business operations such that there had been a work stoppage. The
majority disagrees and now reverses the three lower tribunals’ factual determinations that
there was no substantial curtailment of Constellium’s normal business operations. In so
doing the majority disregards the substantial deference we afford the findings of fact made
by the lower tribunals, and essentially reinterprets this Court’s longstanding precedent
addressing West Virginia Code § 21A-6-3(4) for what is, in essence, that precedent’s final
application. 1 Had the majority adhered to our standard of review and applied our precedent
The Legislature amended West Virginia Code § 21A-6-3(4) in 2017 and removed
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the work stoppage provision. Now, under that code provision, any employee who is
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as written, it would have been compelled to affirm the lower tribunals’ determination that
there was no work stoppage in this matter. Accordingly, I respectfully dissent.
The majority appropriately sets forth our “well-settled” standard of review in
matters of this type:
The findings of fact of the Board of Review of the West
Virginia Department of Employment Security [now Workforce
West Virginia] are entitled to substantial deference unless a
reviewing court believes the findings are clearly wrong. If the
question on review is one purely of law, no deference is given
and the standard of review by the court is de novo.
Syl. pt. 3, in part, Adkins v. Gatson, 192 W. Va. 561, 453 S.E.2d 395 (1994)
(emphasis added). However, the majority fails to explain that we have also held that a
finding is clearly wrong
when, although there is evidence to support the finding, the
reviewing court on the entire evidence is left with the definite
and firm conviction that a mistake has been committed.
However, a reviewing court may not overturn a finding simply
because it would have decided the case differently, and it must
affirm a finding if the circuit court’s account of the evidence is
plausible in light of the record viewed in its entirety.
Syl. Pt. 1, in part, In re Tiffany Marie S., 196 W. Va. 223, 470 S.E.2d 177 (1996) (emphasis
added); accord Donahue v. Cline, 190 W. Va. 98, 102, 437 S.E.2d 262, 266 (1993) (“[A]
reviewing court must evaluate the record of the agency’s proceedings to determine whether
there is evidence on the record as a whole to support the agency’s decision. The evaluation
unemployed as the result of a labor dispute is essentially barred from receiving
unemployment benefits. As such, all of our precedent interpreting the prior versions of
that statute which included the work stoppage provision are superseded by statute.
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is to be conducted pursuant to the administrative body’s findings of fact regardless of
whether the court would have reached a different conclusion on the same set of facts.”)
(citation omitted).
It is clear from the majority’s opinion that it has disregarded this standard of
review. Clearly the majority has overturned a factual finding of three lower tribunals
simply because it would have decided the case differently. Constellium challenged a
number of the lower tribunals’ findings of fact on appeal, and the majority readily finds
“nothing clearly wrong” with all but one of them. The majority’s sole issue lies in the
finding that there was no substantial curtailment of Constellium’s business operations
during the strike period. In reversing that finding, the majority opinion states:
The Tribunal and Board’s factual findings are due substantial
deference, and “the disqualification provisions of the
unemployment statutes must be narrowly construed.” We do
not defer to those tribunals, however, when we conclude that a
factual finding is clearly wrong. Considering that the 2012
labor dispute reduced production at the plant by [51% for plate
production and 38% for coil production] and affected 80
percent of Constellium’s employees, the Tribunal’s and
Board’s finding that Constellium’s normal operations were not
substantially curtailed due to the labor dispute is clearly wrong.
(Footnote and citation omitted).
It cannot be overstated that the majority affirms all of the other factual
findings made by the lower tribunals. Yet, the finding the majority has reversed is directly
predicated on the factual findings it affirms. Specifically, the majority affirms the lower
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tribunals’ use of a larger “lookback” period to ascertain Constellium’s normal production
output, a finding the majority notes it is “reluctant to second guess” because the lower
tribunals were in a better position to assess testimony that the larger timeframe provided a
more reliable picture of the company’s cyclical business. The majority also affirms the
lower tribunals’ decision to include eleven non-strike days in the calculation of
Constellium’s production output during the strike months because excluding those dates
would require one to “extrapolate, assume, estimate and guess the amount, difference, and
significance of the strike and non-strike business activity in the August/September 2012
period.” These findings shaped the methodology the lower tribunals used in calculating
Constellium’s pre-strike normal business output and the drop in production during the
strike—the very calculations upon which the lower tribunals relied in assessing whether
there was “substantial curtailment.”
Even assuming, arguendo, the lower tribunals were mistaken in determining
that there was no substantial curtailment of business operations, we are not in a position to
reverse that factual determination. Our standard of review explicitly prohibits us from
doing so because that determination is “plausible in light of the record viewed in its
entirety.” In re Tiffany Marie S., 196 W. Va. at 226, 470 S.E.2d at 179, syl. pt. 1, in part.
It was not unreasonable for the lower tribunals to examine the facts before them, see that
Constellium’s production output dropped, and still determine that said drop was not
“substantial.” As a reminder, the decrease in production amounted to only 51% of the
normal output for plate aluminum and 38% for coil aluminum. Certainly, there was some
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curtailment here, but whether that curtailment was “substantial” was within the sound
discretion of the lower tribunals, and it is inappropriate for this Court to now disturb their
factual finding in that regard.
My concerns do not end there. In justifying its decision to overturn the lower
tribunals’ finding on substantial curtailment, the majority has chosen to revisit our
precedent interpreting West Virginia Code § 21A-6-3(4). At no point—until this
decision—has this court ever set a threshold for what constitutes “substantial curtailment”.
In addressing Cumberland and Allegheny Gas Co. v. Hatcher, 147 W. Va.
630, 130 S.E.2d 115 (1963), the majority states that
[i]n that case, we surveyed decisions from [other states] before
determining that no work stoppage had occurred; likewise, it is
appropriate in this case to look to other states for guidance.
And when we do that, we see that no court has established a
hard-and-fast rule that a certain percent reduction in the
employer’s normal operations amounts to a substantial
curtailment.
(Emphasis in original). I would agree with the majority that no state has
established a bright-line rule for determining what amount of curtailment is necessarily
substantial. However, the majority goes on to say:
We will not make that rule, either, given the fact-intensive
nature of the “substantial curtailment” inquiry. But in
reviewing the facts of the cases before them, we cannot help
but notice that other courts have recognized that a 20- to 30-
percent reduction in production would seem to be the “critical
breaking point . . . sufficient to establish a stoppage.”
(Footnote omitted).
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In essence the majority, after stating that it will not make a rule, proceeds to
make a rule that anything in excess of roughly 20- to 30-percent of curtailment constitutes
“substantial” curtailment. At no point in the last fifty-eight years—since the publication
of Hatcher—has this Court even hinted that there is a so-called “critical breaking point . .
. sufficient to establish a stoppage.” To do so today flies in the face of our precedent and
improperly usurps the authority of the lower tribunals to determine when the facts of a case
illustrate substantial curtailment constituting a work stoppage.
While the majority may question our 1963 decision in Hatcher, the fact
remains that the statute which formed the basis of that opinion—West Virginia Code §
21A-6-3(4)—remained virtually unchanged from 1931 to 2017, when the Legislature
amended the law to remove the work stoppage provision. For this Court to essentially
reverse our 1963 decision in Hatcher and “reinterpret” the requirements of that statute in a
manner consistent with the 2017 statute is to give ex post facto application to the 2017
statute—a statute enacted well after the events giving rise to this litigation.
Unfortunately, the majority’s holding invites speculation that this decision
may have been based on achieving a desired result, rather than on the analysis of applicable
statutes and pertinent decisions of this Court and courts of our sister states.
Because I believe the majority has overstepped its bounds by evading the
requirements of our standard of review, and—on what is very likely to be its final
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application—by reinterpreting this statute in contravention of our established precedent, I
respectfully dissent.
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