I do not concur in the conclusion reached by the majority members of this court. I am in accord with the conclusion arrived at in the decision of the Supreme Court of the State of Michigan in the case of Park v. Appeal Boardof Michigan Employment Security Commission, 355 Mich. 103, 94 N.W.2d 407.
The two headnotes to that case, as reported in the Commerce Clearing House Unemployment Compensation Reports, considered pertinent here, are as follows:
"Workers employed at three of an automobile manufacturer's Detroit plants were laid off as a result of a strike at a Canton, Ohio, forgings plant owned by the same manufacturer. It is held that the `functional integration' of an employer's plants that are located in more than one state does not make the plants a single `establishment' within the meaning of the law. Therefore, employees out of work in Michigan as a result of a strike against their employer in Ohio are not disqualified under the labor-dispute provisions of the law, where such employees did not strike or picket but were laid off. The earlier *Page 221 (1941) ruling of the court on a similar point in Chrysler Corp. v. Smith * * * [297 Mich. 438], holding that the basic test in determining an `establishment' is `functional integration,' is overruled.
"It is held unnecessary to determine whether any of the four subsections of the labor-dispute provision of the law applies to the employees (e. g., whether they were `directly interested' in the dispute), since, without a finding that there was a labor dispute in the `establishment' where they were employed, the labor-dispute provision may not apply."
It is believed to be clear, from a consideration of the first headnote quoted above, that the decision in the Michigan case,supra, was influenced to a very great extent by the fact that the strike was at Canton in the state of Ohio, while the claimants were employed at the establishments of the employer located in the state of Michigan. In other words, the establishments were in two states, and that fact was pertinent. We have a like situation in the case being considered here, for the reason that the strike was at the "establishment" of the employer, maintained in the state of Michigan, while the individual claimants were employed at the "establishment" maintained by the employer in the state of Ohio.
It is the view of the writer that the definition of a "single employer" in the Ohio law is controlling in a decision on this appeal. Therefore, "single employer" will be considered later in this opinion.
For the purpose of indicating the similarity in the factual situation, the writer quotes from the opinion of the court inPark v. Appeal Board, supra (355 Mich. 103), as follows:
"EDWARD, J. These cases are of great financial importance to the litigants. Yet, after a careful review of over 1,600 printed pages of records and briefs, we conclude that they turn upon the answer to a relatively simple legal question — Does the term `the establishment,' as used in the Michigan employment security act, encompass both Ford plants in the vicinity of Detroit, Michigan, and the Ford forge plant at Canton, Ohio, for the reason that the former cannot operate long without the latter?
"The question is by no means new. In very similar form, it has previously been submitted to the judicial systems of 9 *Page 222 states, each of which had at the time statutory language of like import to that of our state to construe.
"The appellate courts in Massachusetts, New Jersey, Minnesota, Kentucky, New York, Virginia, and Pennsylvania answered the question in the negative. Georgia's Supreme Court alone answered affirmately. In the 9th state, Texas, where compensation claims were allowed under a similar situation and somewhat similar statutory language, the present defendant stipulated to dismissal of its appeal — perhaps in anticipation of a legislative amendment favorable to its position, which did indeed follow.
"For reasons which we detail hereafter, we arrive at the same conclusion reached by the great majority of the courts which have considered the problem. Although, as we will note, much more is in dispute between these parties, in the end this decides the principal question in these cases.
"* * *
"The union with which we are concerned in these cases is the International Union UAW-CIO which, during the period in question, was the exclusive collective bargaining agent of all of the hourly-production and maintenance employees of the Ford Motor Company in all of its plants throughout the United States. The contract between the UAW workers and the Ford Motor Company was for a 5-year period expiring June 1, 1955.
"* * *
"Judges and lawyers can frequently do astonishing things with words. No layman would venture to suggest that the single word `establishment,' used in the paragraph above could in normal usage be applied to both the Ford Rouge plant in Dearborn, Michigan, and the Ford forge plant in Canton, Ohio.
"The writer believes also that no layman, without a specific motive in mind, would read the statutory provisions quoted above and come to the conclusion that the Legislature had any such inclusiveness in its intended use of the word. Although the statute carries within it no definition of `establishment,' its use of the term is, in our opinion, such as clearly to rule out the broad interpretation sought by appellees. Thus, the statute defines the term `employing unit' in the same broad sense which appellees seek to apply to `establishment': *Page 223
"`"Employing unit" means any individual or type of organization, including any partnership, association, trust, estate, joint-stock company, insurance company or corporation whether domestic or foreign * * *.' C.L. 1948, Section 421.40 (Stat.Ann. 1950 Rev. Section 17.542).
"And, in the second sentence of the same definition paragraph, it makes such use of the word `establishment' as, in our view, to preclude any attempt at definition in terms of all integrated plants of a company, wherever located:
"`All individuals performing services within this state for any employing unit which maintains 2 or more separate establishments within this state shall be deemed to be employed by a single employing unit for all the purposes of this act.'
"Indeed, since appellee Ford Motor Company's basic premise is that all of its plants are integrated with its Michigan plants, it appears that appellee seeks an interpretation of the word `establishment' synonymous with the term `employing unit' as defined in the statute.
"* * *
"While the dictionary, the statute, and common sense all argue otherwise, we are urged that this court, in Chrysler Corp. v. Smith, 297 Mich. 438, 298 N.W. 87, 135 A. L. R., 900, so defined `establishment' as to require our holding, as did the circuit judge and the appeal board, that the Ford Detroit area plants in Michigan and the Ford Canton forge plant in Ohio were all 1 `establishment.'
"It might be noted at the outset that no such factual situation was involved in Chrysler Corp. v. Smith as confronts us here. The plants there involved were all in 1 industrial community — the Detroit area; they were all located within 11 miles of one another; and they were all located in the state of Michigan. We deal here with a disqualification argument applicable to nonstriking employees in 3 Detroit area plants, all in Michigan, where the strike inducing the unemployment occurred in another community 150 miles away, and in another state.
"* * *
"We now turn our attention to precedents which deal directly with unemployment compensation cases where it has been argued that a strike in a plant in 1 state disqualifies those laid *Page 224 off as a result in an integrated plant of the same company in another state.
"In 1949 a strike occurred in the Ford Rouge plant in Michigan. The effect of that strike was eventually to paralyze production in a considerable number of Ford assembly plants located in various states. The workers thus laid off sought unemployment compensation benefits under statutes quite similar (though in no case identical) to our own. In these cases, too, there were national issues pending on the bargaining table between the same union and the same company as are here involved, and the company arguments for disqualification of the employees-claimants were based on the contention that the Rouge plant strike in Michigan was really carrying forward the industrial argument for the benefit of Ford union members in New York, Georgia and California, to mention only the most widely scattered of the plants.
"The cases referred to arose from unemployment claims filed by workers at Ford plants (most of them assembly plants) at Hapeville, Georgia (see Ford Motor Co. v. Abercrombie,207 Ga. 464, 62 S.E. [2d], 209); Louisville, Kentucky (see Ford MotorCo. v. Kentucky Unemployment Compensation Commission [Ky.],243 S.W. [2d], 657); Somerville, Massachusetts (see Ford Motor Co. v. Director of the Division of Employment Security,326 Mass. 757, 96 N.E.2d 859); St. Paul, Minnesota (see Nordling v.Ford Motor Co., 231 Minn. 68, 42 N.W.2d 576, 28 A. L. R. [2d], 272); Metuchen and Edgewater, New Jersey (see Ford MotorCo. v. New Jersey Department of Labor and Industry, 5 N.J. 494,76 A. [2d], 256); Buffalo and Green Island, New York (seeMachcinski v. Ford Motor Co., 277 App. Div. 634, 102 N. Y. S. [2d], 208); Chester, Pennsylvania (see Ford Motor Co. v.Unemployment Compensation Board, 168 Pa. Super. 446, 79 A. [2d], 121); Dallas, Texas (see Ford Motor Co. v. TexasEmployment Commission, 7 C. C. H. Unemployment Insurance Rep., par. 8148, p. 46,744); and Norfolk, Virginia (see Ford MotorCo. v. Unemployment Compensation Commission, 191 Va. 812,63 S.E. [2d], 28).
"As we have previously noted, compensation was allowed in 8 of these 9 cases after rejection of the argument that Ford Motor Company integration rendered the individual far-flung *Page 225 plants 1 establishment with the Ford Rouge plant in Dearborn, Michigan. The exception was the Georgia case, where the Georgia Supreme Court rejected liberal construction of the unemployment compensation act and flatly stated with a finality unhampered by excess concern for fine definition or logic:
"`We therefore hold that the Hapeville plant, at which the claimants were employed, and the Dearborn parts-producing plant, where the strike occurred and which compelled cessation of work at the Hapeville plant, were inseparable and indispensable parts of one and the same "factory, establishment, or other premises" as contemplated by those terms as employed in the act now being construed.' Ford Motor Co. v. Abercrombie, 207 Ga. 464, 470,62 S.E.2d 209, 215."
In Nordling v. Ford Motor Co., 231 Minn. 68,42 N.W.2d 576, 28 A. L. R. (2d), 272, a statement is made, at page 88, concerning the use of the single word, "establishment," instead of the three terms, "factory, establishment, or other premises," and is pertinent here as the writer views the situation:
"Under Section 5(d) of the act proposed by the Social Security Board and under our original act, the unit of employment within which the labor dispute must exist in order to disqualify was designated as the `factory, establishment, orother premises at which he is or was last employed.' (Italics supplied.) Under our present act, Section 268.09, sub 1(6), the strike or labor dispute must be in progress `at theestablishment in which he is or was employed.' (Italics supplied.) It is doubtful that the change in terminology was intended to enlarge or diminish the unit of employment affecting the disqualification. It has been held that the words `factory, establishment, or other premises' in the Alaska act, which is similar to the federal act, were ejusdem generis and that the principle of noscitur a sociis applies. Aragon v.Unemployment Compensation Comm. (9 Cir.), 149 F.2d 447,supra.
"We are inclined to believe that in our original act the word `establishment' was intended to include those places of employment which could not be classified as a factory; that in the amendment the Legislature concluded that the term `establishment' was inclusive of factory and all other types of employer *Page 226 units; and that there was no further need to use the word `factory.' For a discussion of the distinction between factory and establishment, see General Motors Corp. v. Mulquin,134 Conn. 118, 55 A.2d 732, supra."
It seems clear that the so-called "escape clauses" in the unemployment compensation law of Michigan had no bearing in the conclusion which was reached by the Supreme Court of that state.
Headnote No. 2 quoted above indicates clearly, it is believed, that those clauses had no bearing on the conclusion or decision in the Michigan case, supra.
The opinion of the court discloses in greater detail that those disqualifying clauses in the Michigan law did not influence the decision.
Section 4141.01, Revised Code, defines "employer" as follows:
"(A) `Employer' means any individual or type of organization including any partnership, association, trust, estate, jointstock company, insurance company, or corporation, whether domestic or foreign, or the receiver, trustee in bankruptcy, trustee, or the successor thereof, or the legal representative of a deceased person who subsequent to December 31, 1936, had in employment three or more individuals at any one time within a calendar year."
"Single employer" is defined in Section 4141.01 as follows:
"All individuals performing services for an employer of any person in this state who maintains two or more establishments within this state are employed by a single employer for the purpose of such sections." (Emphasis added.)
Section 4141.29 provides, with respect to "eligibility for benefits":
"Each eligible individual shall receive benefits as compensation for loss of remuneration due to total or involuntary partial unemployment in the amounts and subject to the conditions stipulated in Sections 4141.01 to 4141.46, inclusive, of the Revised Code."
It is further provided, under subdivision (A), Section4141.29, that "no individual is entitled to a waiting period or benefits for any week unless he" meets certain requirements as *Page 227 specified in subsections numbered 1, 2, 3, 4 and 5, which subsections are not pertinent here.
Subsection (B) under Section 4141.29 is also not pertinent to the question under consideration.
Section 4141.29 provides, in part, that:
"(C) Notwithstanding division (A) of this section, no individual may serve a waiting period or be paid benefits for the duration of any period of unemployment with respect to which the administrator finds that such individual:
"* * *
"(2) Lost his employment or has left his employment by reason of a labor dispute other than a lockout at the factory, establishment, or other premises at which he was employed, as long as such labor dispute continues, and thereafter for a reasonable period of time necessary for such factory or establishment to resume normal operations."
It is clear that the Legislature intended that a "single employer" is an employer "who maintains two or more establishments within this state."
The Legislature did not intend that the definition of a "single employer" should include an employer who maintains two establishments located in different states. In order to be a "single employer," it is essential that the two establishments be maintained "within this state."
It will be noted that the definition of a "single employer" is applicable to "such sections," which necessarily includes Section 4141.29 affecting "eligibility for benefits" and also subsection (C) (2) which precludes benefits if the individual "lost his employment by reason of a labor dispute other than a lockout at the factory, establishment, or other premises at which he was employed * * *."
The definition of "single employer" is limited to an "employer" who maintains two or more "establishments within the state" and it does not include an employer who maintains one establishment in this state and another establishment in the state of Michigan.
It is clear also that the definition of a "single employer" is not confined or limited to the sections which have reference to payments which the employer is required to make into the fund, *Page 228 but it is also applicable to "such sections" which govern "eligibility for benefits."
The employer who maintains one establishment in this "state" and another establishment in the state of Michigan is not a "single employer" with respect to the individuals employed in "this state" under "such sections."
Since the employer in this case maintains one establishment in the state of Michigan and another establishment in "this state," such employer is not a "single" or the same employer with respect to the individuals who lost their employment at the establishment in "this state" by reason of a labor dispute at the establishment located in the state of Michigan.
The reason, it would seem, for confining a "single employer" to an employer "who maintains two or more establishments within this state" is that the requirements of the unemployment compensation laws of the states vary and are different, both with respect to payments into the fund and also with respect to individual "eligibility for benefits."
The employer and employees at the Michigan establishment are subject to the requirements of the Michigan unemployment compensation laws, while the employer and employees in Ohio are subject to the requirements of the unemployment compensation laws of "this state."
In the Michigan law, the phrase, "employing unit," is used instead of the "single employer" used in the Ohio law, otherwise the definitions are almost identical. (See "employing unit" above.)
Since the individual claimants in this case did not lose their employment by reason of a labor dispute "at the factory, establishment, or other premises" at which they were employed, it is the conclusion of the writer that the claimants are entitled to unemployment compensation. *Page 229