United States Steel Corp. v. Wood

CATES, Judge. This is an appeal from a judgment of the Jefferson Circuit Court holding an employee-claimant, Mr. Cecil Wood, not to be disqualified from receiving unemployment insurance because of a labor dispute in September and October, 1954, Code 1940, T. 26, § 214(A), as amended. Our record omits the various matters required to be filed by the Director of Industrial Relations with the circuit court — 433 — under Code 1940, T. 26, § 221. However, since the circuit court cannot entertain an appeal without the appellant having shown that it exhausted its administrative remedies, we shall presume from the judgment that the jurisdictional facts have been shown because in a civil appeal the submission of the case by both parties is accorded deference, and also the record here would alternatively support consideration on a petition for a writ of certiorari. Ex parte Alabama Textile Products Corp., 242 Ala. 609, 7 So.2d 303, 141 A.L.R. 87; Alabama Power Co. v. City of Fort Payne, 237 Ala. 459, 187 So. 632, 123 A.L.R. 1337. The testimony of Leland Johnson, Assistant General Superintendent of the ore mines and quarries of U. S. Steel, was that Mr. Cecil Wood, the claimant, worked at number seven ore mine of that company in Jefferson County, Alabama. Mr. Wood testified that on September 29, 1954, he was working the 11:00 p. m.-7:00 a. m. turn (shift) at number seven ore mine (at Wenonah, Jefferson County, Alabama) of the Tennessee Coal and Iron Division of the United States Steel Corporation. Mr. Wood’s testimony continues as follows: “Q. Tell us just as best you recall just what happened at the end of this shift? A. I believe Mr. Henderson was night foreman at that time, and as we loaded up to come out that morning, he said that there wouldn’t be any work until further notice or something to that effect. “Q. He told you that there wouldn’t be any further work? A. Yes. “Q. I believe that you told us at the time the Board of Appeals had the hearing, you did not know or did not recall whether Mr. Henderson specifically mentioned the railroad situation or transportation situation or not; is that still your recollection of it? A. That is right; I don’t know whether he did or not. “Q. Is that all you know about why you didn’t work? A. That is all. “Q. You were ready and willing to work? A. Yes, sir. “Q. And as soon as there was work there for you to do that the Company told you about, you were willing to work? A. Yes, sir. “Q. And did you know anything about the problem that they say originated in the Ore Conditioning Plant that night? A. No, sir.” There were two strikes on September 29, 1954, affecting transportation of iron ore from the company’s mines; first, to an ore conditioning plant and thence to the furnaces for processing ultimately into steel. The transportation department of the company had a railroad strike which began 6:00 a. m., September 29, 1954, and ran to 11:55 a. m., September 30, 1954. The ore plant was shut down by a dispute which began at 4:40 a. m., September 29, 1954, with a work stoppage at 7:16 a. m., of that day lasting until 3 :00 p. m., October 11, 1954. Wood was continuously out of work from 7:00 a. m., September 30 to 11:00 p. m., October 12, 1954. Since no contention is made thereabout, we take it that Wood met the burden of showing himself eligible for each week for which he has filed a claim (see Department of Industrial Relations v. Tomlinson, 251 Ala. 144, 36 So.2d 496), and that the burden of persuasion has shifted to his employer or the Director of Industrial Relations (as trustee of the Unemployment Compensation Fund) to show he is disqualified, if he is to be denied benefits because of a disqualification. The record fails to show when Wood first reported to the Employment Service for work and filed his unemployment compensation claim. The exact date of filing is not important for present purposes. Nevertheless, his first week of compensable unem — 434 — ployment must, under Code 1940, T. 26, § 213(D), as amended, be preceded by a week’s waiting period of total unemployment. Thus, the first week of benefits could not have been earlier than that beginning October 7, 1954 — at a time when the rail strike was no longer in “active progress.” So, whatever causative impulse arose from that dispute had lost all its force in the continuance of Mr. Wood’s being out of work during the time for which he asks to be paid. This dispute at the ore plant arose because the company had, after making some mechanical changes on ore crushers, graded two labor jobs from Class Three to Class Two, with a pay rate reduction from $1.68 to $1,625 per hour. The fairness of this reclassification was being considered conformably with grievance procedures under the labor-management agreement. The evidence does not reveal at what stage the matter rested on September 29. The ore plant night shift foreman and the night shift laborers had an argument at 4:40 a. m., when the foreman ordered them to clean out a blockage caused by a failure of an “eccentric.” This work apparently was considered by the workmen to be a duty within a Class Three job but not appurtenant to Class Two. The matter came to a head when the 7 a. m. shift came on and a large laboring crew were directed to start cleaning out the crusher. This they refused to do unless they were paid job Class Three. The foreman sent them home and the other men at the ore plant left in sympathy. This ore conditioning plant served all the ore mines so that as the ore went from mine to blast furnace it had to be processed at the ore plant. However, the evidence did not demonstrate that it was an absolute impossibility to operate the iron ore mines without operating the ore plant. We consider that the evidence tends to show that the cessation of operations of the ore crusher could be a bottleneck to the operation of the mines under the physical layout of the employer’s work. This brings us then to a consideration of the dispute at the ore conditioning plant. No question is made as to its existence. The first question is: Was it in the same establishment as that in which Mr. Wood was employed ? This in turn involves whether or not the principles deducible from Tennessee C. I. & R. Co. v. Martin, 33 Ala.App. 502, 36 So.2d 535, affirmed 251 Ala. 153, 36 So.2d 547, wherein the coal mines and the railroad system of this same employer (then called T. C. I.) were held to be discrete units, and, therefore, not embraced in a single establishment. Even though this first question may be resolved in favor of the employer, we then are met with the contention that, since the unemployment insurance law was enacted to better conditions in a complex industrial society given to periods of almost chronic over-production (or under-consumption) that its beneficient provisions are to be broadly construed. The analogy to the construction of an insurance policy is almost inescapable, e. g., “ * * * and thereby deprive them of compensation benefits which they had bought and paid for.” Department of Industrial Relations v. Drummond, 30 Ala.App. 78, at page 81, 1 So.2d 395, at page 398; see Usher v. Department of Industrial Relations, 261 Ala. 509, 75 So.2d 165. Whether or not this latter principle would apply even where the claimant was a participant in a labor dispute or what degree participation taints a claim under § 214 (A), we need not decide, since Wood himself was not a member of any striking union local. The fact the locals at the ore mines and those at the ore plant were constituent of the United Steelworkers does not seem relevant here to establish Wood as a striker by association. Mr. Johnson, in explaining the relationship between the ore mines and the ore conditioning plant, stated that this part of — 435 — the company was under a general superintendent, Mr. Beck. Under Mr. Beck, we find the assistant general superintendent (the witness Johnson) and under them (1) a superintendent for ore mines nine, ten and eleven (the Ishkooda portion of the works) ; (2) a superintendent for ore mines seven and eight, a limestone mine and Delonah quarry; (3) a superintendent of the ore conditioning plant; and (4) a superintendent of maintenance. We have excerpted parts of the testimony beginning with that of Mr. Johnson: “All of the red ore [iron] that is mined at our ore mines must come to the ore conditioning plant where it is crushed first, screened and sized. “And finally put into various stock areas, where then it is finally blended out to a certain uniform chemical content for use in the furnaces. But this ore as run-on mine [sic — run-of-mine?] ore comes out in large chunks and fines and that all must be crushed and placed into uniform sizes before the blast furnaces can use it. And also must be able to blend it to a special iron content as well as the foreign matter insofar as the product we ship to the furnaces. “Q. Isn’t it true at this time if there is some work stoppage or breakdown or any other stoppage in the ore conditioning plant, that in a matter of hours that would affect production in the mines? A. That is correct. “Q. All right. A. The Ore Plant must unload the cars and process that ore and return the cars to the mines. If we do not have empties we cannot operate the mines.” A ^schematic drawing was introduced in evidence to illustrate the flow of iron ore from these mines seven, eight, nine, ten and eleven via 70-ton railroad cars all funnelling into the ore plant and thence to the furnaces for the next step in the making of steel. Johnson used the drawing to illustrate his-testimony, a copy of which is appended to-this opinion: “This sketch [defendant’s Exhibit 1] depicts that we have number eleven, number ten, number nine, number eight and number seven red ore mines that are all mining red ore, and is picked up and loaded into 70 ton cars, and transported to the Ore Conditioning Plant. They all come through on one line to the plant. And this shows the so-called rotary dump where the ore then is crushed and sized there and finally blended. And it is re-loaded at. this point and sent on then to the furnaces at this point where it is used in the blast furnaces. Strictly a schematic drawing, but shows the flow of the material. “Q. But shows the flow of material to [from] the ore mines and quarries?' A. That is right. j{i s}i % % i}c “If we had a stoppage at this place-fore plant] where we could not unload the cars, then we would not have-empties at each mine to mine ore and reload the cars. It is a continuous cycle of loading and unloading and bringing the empties back to the mines. * * * * * * “A. The production actually was stopped at the end of the three to-eleven turn [shift] on September 29th;. that was one hour before midnight on the 29th. That was the last of actually hoisting ore out of the mines. “Q. All right. A. We did then operate a eleven to seven turn which went on into September 30th. But that shift is more for handling materials into the mine, such as roof bolts and our explosives and all of that; sorting material, and a small amount of service work. So we actually terminate operations insofar as the Ore Mines were concerned at 7 A.M., on September 30th. — 436 — “Q. With the actual normal production being terminated when? A. At 11 o’clock on the 29th. 11 P.M. “Q. And I believe it was on this 11 to 7 A.M. shift that night in which Mr. Wood, the claimant in this case, last worked? A. That is correct. — 437 — “Q. When was it possible for the Ore Mines and Quarries to resume operations? A. We were able to resume operations as far as hoisting ore at 7 A.M. on October 12th. We operated both the day and afternoon turns on October 12th. * * * * * * “A. If the Ore Plant had operated •and processed the ore through the primary crushers then the mines were in readiness to start as soon as there were .sufficient empties to begin. Ifc i{i ‡ }{í ífc i|* “I will just ask you another question, Mr. Johnson. As a matter of fact, there is one portion of the ore mines and quarries which produce limestone? “A. That is correct. “Q. That was able to operate? A. They operated throughout this period. “Q. From September 29th through October 11th? jfc jfí ‡ ‡ >{; “Q. It is not necessary for limestone to go through the Ore Conditioning Plant? A. No, the limestone goes directly to the furnaces, and also dolomite quarry. * * * * * * “Q. The last shift he actually worked in this period was when? A. He completed his last eight-hour turn at 7 A.M. on the 30th. * * * * * * “Q. Do you have the date there that would show when Mr. Wood was next able to work after the work stoppage had been terminated? A. Yes, sir, I do. “Q. If you' would give us that, please, sir? A. He came out on the same 11 to 7 shift on October 12th. He came on at 11 o’clock on October 12th and worked that 11 to 7 shift, which is termed the 13th. And it so happened he spent half of his time at Number seven and half at Number eight mines so he was timed four hours at each location. “Q. Do you recall when it was the Ore Conditioning Plant itself actually resumed operations? A. The Ore Conditioning Plant began operations at 3 P. M. October 11th.” Johnson on cross-examination: “Q. * * * I think you testified we have a contract which covers the collective bargaining unit of the ore mines, the Conditioning Plant and the Delonah Quarry, is that correct? A. Also the Limestone mines and the old Muscoda Division. “Q. Yes. I was treating that as ore mines. However, there are separate local unions at Delonah quarry, at the Wenonah Ore Mines and at the Sintering or Ore Conditioning Plant that we are talking about, aren’t there ? A. There are five locals, but they all bargain collectively. “Q. All right. That is your opinion about it. I didn’t ask you that, Mr. Johnson. “Let me get some facts about it. You have a local union for instance in the Ore Conditioning Plant that we are talking about? A. That is right. “Q. It has separate offices? A. Yes, sir. “Q. Separate grievance committees ? A. That is correct, sir. “Q. It handles its grievances by itself with your lower echelons of management and then up to the superintendent of the Ore Conditioning Plant, don’t they? A. That is right. “Q. And in that regard, no one, no local union from Wenonah or Delonah or Muscoda would have anything to do with the problem that your management at the Ore Conditioning Plant — 438 — was taking up with its grievance committee, would it? A. That is correct. “Q. And you have a superintendent, is that the title of the chief management representative in the Ore Conditioning Plant? A. That is right. “Q. A Plant Superintendent? A, Yes. Jji 5fS # # Jj« “Q. Plow far the ore conditioning plant is located from the ore mines in terms of distance? A. In terms of distance, the closest mine to the ore plant is Number Seven. And it is just a matter in a direct line of 700 feet. “Q. What is in between; just tracks? A. That is right. “Q. Railroad tracks ? A. As [for] the handling of the ore, it would have to be switched around and the distance would be maybe a quarter of 'a mile or something like that. As [for] Number Eleven, it is probably two miles from the Ore Plant.” Jack Neal, superintendent of mines seven and eight, on direct: “Q. Would you just briefly describe the first information that you had about the two work stoppages, the one that started at the Ore Mines and also the rail transportation strike and exactly what you did with respect to that? A. With respect to- the one at the Ore Conditioning Plant, it was around the middle of the day as I recall on the 29th that I had knowledge of the fact that they had a crusher failure and a crusher stopped up and they were unable to get it mucked out, and that the men had left the job. And following that time, I believe it was probably sometime after six, maybe eight or nine I had knowledge of the rail transportation stoppage. “Q. All right. A. And following that time or at the time, the 3 to 11 turn in production was in process, the decision was made that we would not be able to continue through the lack of empty railroad cars, and I went to Number Seven and instructed the night mine foreman there to advise the men that we could not operate without empties, and similarly at the Number Eight Mine.” The views of the Wisconsin and Michigan courts have now, unlike the status of the law before the Martin case, supra, become the minority doctrine as to the scope to be accorded the word “establishment” in unemployment insurance statutes; see Nordling v. Ford Motor Co., 231 Minn. 68, 42 N.W.2d 576, 28 A.L.R.2d 272 (annotation at page 287). The annotation in 28 A.L.R.2d, at page 326, et seq., lists two tests employed in ascertaining what is an establishment under similar statutes, viz., functional integrality and physical proximity. To these could be added collective bargaining units (as under various Labor Relations Acts), establishments under various phases of the Wage and Hour Law, managerial integrality. Many states have statutes that use expressions such as “factory, workshop or other premises.” It is to be noted that the Supreme Court, in T. C. I. & R. Co. v. Martin, supra, expressly refused to approve this court’s finding that Martin’s unemployment was directly due to a labor dispute. Therefore, the Martin case only has the imprimatur of our senior tribunal for the proposition that if the strike is not in the claimant’s working establishment, as there mentioned, he is not disqualified under § 214(A). In argument we were told by appellant that Usher v. Department of Industrial Relations, supra, was bad law. For us such a major premise for review of a record is. beside the point. Under Code 1940, T. 13, § 95, we are-statutorily compelled to follow the Supreme Court: even as to its dicta, we find expressions that we are bound, Johnston v. Mobile Hotel Co., 27 Ala.App. 145, 167 So. 595; contra, McCoy v. Prince, 197 Ala. 665, 73. — 439 — So. 386. For a bewildering proliferation of the problem, see Waterman S. S. Corp. v. Brill, 243 Ala. 25, 9 So.2d 23, reversing this court at 30 Ala.App. 544, 9 So.2d 21, and overruling Duggar v. Mobile & Gulf Nav. Co., 224 Ala. 359, 140 So. 614. Thus, if we take Usher as the latest word from our senior brethren, we find the majority adopting the Drummond, 30 Ala.App. 78, 1 So.2d 395 rules: “First, a purchaser of ‘protection against involuntary unemployment’ should not be denied benefits because of a strike in which he is not involved and which he did not start (‘the causes of which * * * he [was] powerless to avert’) personally or vicariously; and “Second, the above rule did not come into play, where the employer chose to shut down claimant’s establishment in fear of violence (i. e, a lockout), because a lockout to prevent bloodshed does not bring about unemployment due to a labor dispute rather it is the employer’s voluntary dismissal of his workers.” Thus it would seem that anticipating the effect of a labor dispute to the extent of ordering employees not to report to work makes the cause of idleness a matter of conjecture as between the employer’s willful act and the possibility of there being no work because of a stoppage of other hands. We assume the Supreme Court considers this too remote a showing of “directly due” to be a labor dispute. We are uncertain of Mr. Justice Merrill’s qualification of his concurrence in the majority opinion in the Usher case. The Drummond strike began March 31, 1939; the 1939 amendment containing the present definition of a labor dispute was introduced in the State Senate August 22, 1939 (S.B. 440, see p. 1554, 1939 Senate Journal). Thus the Drummond strike was an historical fact when the definition was put in the law. The writer attaches no significance to this change in this case, since the 1939 amendment appears to connote what is generally accepted in common terms as a labor dispute between those in privity as employer and employee. In view of the breadth of the Drummond case rules, as finally assimilated into our received law by the Usher opinion, we consider the Martin establishment enquiry as unneedful. The judgment of the Circuit Court is Affirmed.