The statement in the two opinions of my associates appears to fairly and substantially present the material facts. It is my view that the Pesnell case (Department of Industrial Relations v. Pesnell, 29 Ala. App. 528, 199 So. 720) is decisive of the question under consideration, and that the principle announced in the Drummond case, ante, p. 78, 1 So.2d 395, 398, is inapplicable.
In Drummond it was declared: "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."
But, when the unemployment of a member of a labor union is directly caused by a dispute between that member's union and a rival organization, still in active progress in the same establishment, it cannot be said that the principle of the Drummond case applies.
The law of the Pesnell case seems to be more in point, where the substance of the holding was that if an individual's unemployment resulted from a labor dispute, brought on by or participated in by an organization of which such individual was a member, then unemployment benefits *Page 465 could not be collected under the Alabama Unemployment Compensation Act.
Undoubtedly, the claimant here comes within the purview of this holding. There was definitely a labor dispute; for the term "labor dispute" (as now defined in the Act, and which definition became effective after the two cases supra) 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 proximaterelation of employer and employee." (Italics supplied.) Code 1940, Title 26, Section 214, subd. A. There was certainly a controversy concerning the "terms" and "conditions of employment" and regarding who should be the representative of the employees (the bargaining agent), the C.I.O. or the A.F. of L. Unquestionably, this dispute was "still in active progress in the establishment," for the A.F. of L. was contending that the election whereby the C.I.O. gained control was illegal, was demanding another election, was objecting to the closed shop contract between the management and the C.I.O., had been so objecting from its inauguration, and, seeing that its demands and objections were being ignored, called the strike in protest and opposition to this situation. And this strike was the culmination of the controversy, the dispute. This strike was the final stage of this "labor dispute." This strike — this last phase of the labor dispute — was what caused the claimant's unemployment. Clearly, under the law, now, she is not entitled to benefits by reason of the disqualification clause in the definition, above.
This definition in the disqualification clause of the statute is specific in its declaration that "any controversy concerning * * * conditions of employment," which directly causes unemployment, is included in the term "labor dispute". It cannot be gainsaid that the controversy, — the strike here — which prevented the claimant from working, was concerning conditions of employment.
The disqualification clause also includes in its definition of a labor dispute those jurisdictional controversies as to who or which union should be the bargaining agent of the employees. This by the clear language of the clause, that a labor dispute shall include any controversy "concerning the association or representation of persons in negotiating, fixing, maintaining, [etc.], terms or conditions of employment." And such term includes in its definition not only such disputes between the employees and the management, but also controversies between rival unions in the same establishment. This by the concluding phrase, "regardless of whether the disputants stand in the proximate relation of employer and employee." I think it clear that the unemployment of claimant resulted from this very thing, i. e. a controversy between the C.I.O. (of which she was a member — and under the Pesnell and Drummond cases, she would be rendered disqualified for benefits if her union were a party to or concerned in the controversy) and the A.F. of L. as to who should be the bargaining agent. And the C.I.O. having gained control by the N.L.R.B. election and by this control having procured a closed shop status for the mill employees, the loser in the controversy, the A.F. of L., utilized its final weapon of defense and protest, the strike. The result, the unemployment of claimant.
It is interesting to note that the definition of a labor dispute employed in the Alabama Unemployment Compensation Act was taken, verbatim, from the Norris-La-Guardia Act,29 U.S.C.A. § 113(c), and National Labor Relations Act,29 U.S.C.A. § 152(9). See Pesnell case, supra.
It also affords interesting observation — as was commented upon in the Drummond case — that the all embracive and broad definition of a labor dispute in the Federal Act was there employed for the purpose of benefiting the worker and to preserve and encourage the right of collective bargaining.
So, we have the unusual situation in the Alabama Act of a broad and comprehensive definition of a term used in a remedial statute (the Federal Acts), the design of which was to benefit the worker, wrenched from its original, legislative setting and transposed to another remedial act (the Alabama Unemployment Compensation Act) as a penalty and for the evident purpose of disqualifying the worker under the certain conditions named in the definition in the Alabama Act.
But, be that as it may, such is the present status of the Alabama statute. And however sympathetic might be our disposition to aid the claimant and whatever may *Page 466 be our personal view as to the propriety of incorporating in the Alabama Act the all inclusive definition, given the term "labor dispute" in the Federal Acts, it is not here appropriate to consider. The language of the law is plain. The facts are uncontroverted. It is but the duty and jurisdiction of the court to rule in accordance with the law, as written. We cannot extend it or give it a beneficent effect which is not there.
The mere fact that, during the pendency of this controversy and while the strike was in progress, there was lawlessness, "defiance of law" — or by whatever term the acts which prevented free ingress and egress of claimant and others to and from the mill may be characterized — did not militate against the conclusion that the strike — the labor dispute — was the primary and direct cause of the claimant's inability to work at the mill. It would be specious to argue that, when a controversy resulting in a strike is attended with violence or lawlessness, it ceases to be a strike, and that the controversy or dispute, eo instante, loses its identity as such. It is nonetheless a dispute, a strike, even though acts of violence, etc., attend it.
In plain language, the facts here present the typical jurisdictional controversy between rival unions where, after a progressive controversy, one has gained control and the other strikes in protest thereof, and as a result thereof the claimant, a member of one of these unions (who by her vote for the closed shop, with other members, contributed to the cause of the strike), was rendered unemployed. The Alabama compensation law, as presently written, forbids to such a person the collection of benefits.
I think the judgment of the trial court should be affirmed for the foregoing reasons and for these reasons, alone.
I am not in accord with the views of our Presiding Judge BRICKEN that the facts of the case disclose that the mill and the C.I.O. had entered into an illegal and void contract seeking "to monopolize the textile labor market in Calhoun County." One of the late statements of the rule is found in Corpus Juris Secundum: "Closed shop contracts by employers to employ only union labor or contracts not to employ any union labor are valid where they do not operate generally in the community to prevent craftsmen from obtaining employment, but are invalid as against public policy if they do so operate." 17 C.J.S., Contracts, p. 650, § 267.
It was there further observed that "it has been said that closed shop contracts by unions which welcome to their ranks all good men in the same line of work, who will submit to the common discipline, which are governed on democratic principles and membership in which is open, on reasonable and equal terms, to all persons of good character and of skill in the trade, are valid and not against public policy." 17 C.J.S., Contracts, p. 651, § 267. From the facts presented, this seems to be the situation of the closed shop contract, entered into here, and which precipitated the strike and caused the unemployment of claimant.
Moreover, it seems unnecessary to embark upon an excursion to determine the character or quality of the closed shop contract. Whether monopolistic or fair, or whether legal or void, is of no consequence in the present discussion. The progress of the dispute in connection with that contract, finally resulting in the strike, was the labor dispute which produced the unemployment of the claimant, disentitling her to benefits under the Act.
I think the judgment should be affirmed.