Olson v. Job Service North Dakota

CROTHERS, Justice,

concurring specially.

[¶ 31] I concur in the result reached by the majority. I respectfully submit the *47discussion by the majority and the dissent have gone farther afield than necessary to decide this case.

[¶ 32] We are directed by law to interpret words in a statute according to their ordinary sense. N.D.C.C. § 1-02-02. “When the wording of a statute is clear and free of all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.” N.D.C.C. § 1-02-05. The statute at issue here provides in pertinent part:

“An individual is disqualified for benefits:
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“For any week with respect to which it is found that the individual’s unemployment is due to a strike, sympathy strike, or a claimant’s work stoppage dispute of any kind which exists because of a labor dispute at the factory, establishment, or other premises at which the individual is or was last employed.”

N.D.C.C. § 52-06-02(4).

[¶ 33] The plain wording of N.D.C.C. § 52-06-02(4) decides this case. Ejusdem generis analysis may have been appropriate when construing the original 1981 amendment that replaced “stoppage of work” with “strike, sympathy strike, or work stoppage dispute of any kind.” See Majority Opinion at ¶ 21; 1981 N.D. Sess. Law ch. 503. However, after the 1981 amendments were changed in committee to add the word “claimant’s,” ejusdem gen-eris analysis is at best unnecessary and at worst incorrect.

[¶ 34] The pending case does not present us with a claim for unemployment compensation during a strike or sympathy strike. If ejusdem generis analysis is not necessary, no time need be spent pondering how the terms “strike” and “sympathy strike” might lead to a different result under different facts. If the statute is not ambiguous, and I believe it is not, no time need be spent reviewing legislative committee minutes, hearing tape transcriptions and written testimony. Nor is our work advanced trying to estimate whose interests were intended to prevail over the other during the 1981 legislative proceedings. Therefore, instead of a wide ranging discussion about situations and information not relevant to the Court’s inquiry, discussion should be limited to the statute’s language “or a claimant’s work stoppage dispute of any kind which exists because of a labor dispute at the factory, establishment, or other premises at which the individual is or was last employed.” N.D.C.C. § 52-06-02(4).

[¶ 35] This relevant portion of the statute has two parts, and both must be satisfied to disqualify a claimant from receiving unemployment benefits. It is useful to start by looking at the second part requiring a “labor dispute” at the claimant’s work place. N.D.C.C. § 52-06-02(4).

[¶ 36] A “labor dispute” is not defined under the North Dakota law regulating unemployment compensation. However, the term is defined in the chapter regulating court proceedings involving labor disputes and provides:

“ ‘Labor dispute’ includes any controversy concerning terms 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 whether or not the disputants stand in the proximate relationship of employer and employee.”

N.D.C.C. § 34-08-01(2). The term also is defined as:

“A controversy between an employer and its employees concerning the terms or conditions of employment, or concerning the association or representation of *48those who negotiate or seek to negotiate the terms or conditions of employment.”

Black’s Law Dictionary 952 (9th ed.2009).

[¶ 37] The second element of N.D.C.C. § 52-06-02(4) requiring a labor dispute unquestionably is satisfied in this case by the following stipulated facts:

“The Collective Bargaining Agreement (“CBA”) between Crystal Sugar and the Unions expired on August 1, 2011.
“On July 28, 2011, Crystal Sugar made its final offer for a Collective [Bargaining Agreement to the Unions. Crystal Sugar’s final offer was rejected by the voting members.
“Bargaining unit employees of Crystal Sugar were required to leave the plants at the end of the day, July 31, 2011, as a result of the Company declaring a lockout and has not allowed those employees to return to work. From August 1, 2011, replacement workers were used and work production has continued unabated.”

From these stipulated facts the Bureau found:

“In this case, it is accepted that a lockout constitutes a labor dispute. The Court in Robberstad v. Dir. North Dakota Employment Security Bureau, Burleigh County Civil Case No. 28570 (1980), relying upon ‘the general policy of neutrality by the state in labor disputes,’ held that a lockout was a labor dispute.”

[¶ 38] Having established a “labor dispute,” the second part of the statute is satisfied. However, what is not satisfied for unemployment compensation disqualification is the existence of “a claimant’s work stoppage dispute of any kind.” Unlike the second part of the statute, the first part does not look at the overall relationship between the parties.

[¶ 39] The specific words in the statute’s first part address the “claimant’s work stoppage dispute.” N.D.C.C. § 52-06-02(4). The words are not narrowly disqualifying due to a “claimant’s work stoppage.” Nor are the words broadly disqualifying due to a “claimant’s work dispute of any kind” or a “work stoppage dispute of any kind.” Rather, the words chosen by the legislature focus on the “claimant’s work stoppage dispute of any kind.” Id. (emphasis added).

[¶ 40] The labor dispute here is a company lockout. North Dakota law does not define a lockout, so we look to use of the term in its ordinary sense. N.D.C.C. § 1-02-02. Black’s Law Dictionary defines lockout as, “An employer’s withholding of work and closing of a business because of a labor dispute.” Black’s Law Dictionary 1024 (9th ed.2009). Similar definitions of a lockout used in sister states focus on the employer’s actions. See Alexander v. Employment Appeal Bd., 420 N.W.2d 812, 814 (Iowa 1988) (“[I]n general, a lockout has been defined as ‘a cessation of the furnishing of work to employees or a withholding of work from them in an effort to get for the employer more desirable terms.’ ”) (quoting Zanesville Rapid Transit, Inc. v. Bailey, 168 Ohio St. 351, 155 N.E.2d 202, 205 (1958)); and Mead Products v. Indus. Comm’n of Missouri, 656 S.W.2d 805, 810 (Mo.Ct.App.1983) (“The dictionary definition of ‘lockout’ is the withholding of employment by an employer and the whole or partial closing of his business establishment in order to gain concessions from his employees.”) (quoting 48 Am.Jur.2d Labor and Labor Relations § 1108 at 895).

[¶41] A company lockout is not “a claimant’s work stoppage dispute of any kind” because the lockout occurs as a result of employer action. Because a lockout is an employer action, the requirement that the claimant’s unemployment is due to *49his or her action in a work stoppage dispute is not satisfied. The absence of one of two factors necessary for disqualifying the claimant from receiving benefits means the claimant is entitled to receive unemployment benefits as provided by law. Therefore, I would reverse the district court’s decision and remand this matter to Job Service for determination of benefits.

[¶ 42] Daniel J. Crothers