Scott v. Smith

MR. JUSTICE JOHN C. HARRISON:

Dissenting- in part and concurring in part.

While I am able to agree with parts of the majority opinion, yet I feel compelled to dissent to other parts thereof as I shall hereafter point out.

Our Legislature in passing the Unemployment Compensation Act in 1937 declared in section 87-102 the public policy which is as follows:

“As a guide to the interpretation and application of this act, the public policy of this state is declared to be as follows:

“As a guide to the interpretation and application of this act, the public policy of this state is declared to be as follows: Economic insecurity due to unemployment is a serious menace to the health, morals, and welfare of the people of this state. Involuntary unemployment is therefore a subject of general interest and concern which requires appropriate action by the legislature to prevent its spread and to lighten its burden which now so often falls with crushing force upon the unemployed worker and his family. The achievement of social security requires protection against this greatest hazard of our *283economic life. This can be provided by encouraging employers to provide more stable employment and by the systematic accumulation of funds during periods of employment to provide benefits for periods of unemployment, thus maintaining purchasing power and limiting the serious social consequences of poor relief assistance. The legislature, therefore, declares that in its considered judgment the public good, and the general welfare of the citizens of this state require the enactment of this measure under the police powers of the state for the compulsory setting aside of unemployment reserves to be used for the benefit of persons unemployed through no fault of their own.” Emphasis supplied.

From a reading of this section, it is clear that the Legislature set forth several general policies in its declaration to be considered in such cases as this.

(1) “Economic insecurity due to unemployment is a serious menace to the health, morals, and welfare of the people of the state.”

(2) “Involuntary unemployment is therefore a subject of general interest and concern which requires appropriate action by the legislature to prevent its spread and to lighten its burden which now so often falls with crushing force upon the unemployed worker and his family.”

(3) “The achievement of social security requires protection against this greatest hazard of our economic life. ’ ’

(4) “This can be provided by encouraging employers to provide more stable employment and by the systematic accumulation of funds during periods of employment to provide benefits for periods of unemployment, thus maintaining purchasing power and limiting the serious social consequences of poor relief assistance.” and

(5) “The legislature, therefore, declares that in its considered judgment the public good, and the general welfare of the citizens of this state require the enactment of this measure under the police powers of the state for the compulsory *284setting aside of unemployment reserves to be used for the benefit of persons unemployed through no fault of their oiun.” Emphasis supplied.

Reading this section and the sections that follow, particularly section 87-106 which sets forth the qualifications for benefits, it is clear that the Legislature did not intend that workers unemployed due to a labor dispute would be compensated for, under, and through the unemployment compensation law. In the one case that has been before this court, Jordan v. Craighead, 114 Mont. 337, 136 P.2d 526, this court so held.

Insofar as the majority opinion goes in holding that the above section does not allow compensation to persons engaged in labor disputes, I concur due to the fact that it is the stated statutory law and interpreted case law of the state. However, I find myself iu disagreement with the majority opinion on its findings in numerous of the cases included herein and will set forth general reasons for my dissent on principles that I believe the majority opinion failed to consider or to give sufficient thought to.

It appears to me that the majority opinion has laid too much stress on the failure of the employee to give notice to his employer of the termination of his employment before he found employment elsewhere. It would appear to me from the majority decision that it would be necessary for an employee out on strike who finds work elsewhere to give written notice to his employer of the fact that he had found work elsewhere and would not return to an employment of the struck employer after termination of the strike. This I do not understand as a requirement of the law. Throughout these cases there is evidence to prove the fact that employees in good faith and by diligence had found employment elsewhere in some instances had gone as far as 300 miles from their place of last employment, for periods of two and three months and in several instances the families had moved from the location of the struck plant to a new location where the employee found employ*285ment. All of which shows that the employee desired to secure steady work and maintain his family during the period in which his family might otherwise incur debts due to the strike of his last place of employment. It is a stated policy that the Legislature adopted the Unemployment Compensation Act to encourage employment, to maintain the purchasing power, and to remedy the serious consequences of poor relief in communities of the state. The acts of the employee in some instances show good faith in their efforts to secure permanent employment.

While the majority opinion cites Hopkins, Inc., v. California Employment Commission, 24 Cal.2d 744, 151 P.2d 229, 154 A.L.R. 1081; Bruley v. Florida Industrial Comm., Fla.App., 101 So.2d 22, (1958), I do not think they gave sufficient consideration to their holdings. These cases hold that the determination of a claimant’s qualification by subsequent employment depends on whether it in fact breaks the continuity of the claimant’s unemployment and the casual connection between his unemployment must be bona fide and not a device to circumvent the statute; and that it must be permanent, full-time, completely replace the former employment and terminate the relationship between the claimant and his former employer; however, these eases do not require formal notice to the employer of such termination. To require more of the employee is unfair and contrary to the true spirit of the law. It penalizes a person who honestly tries to support himself and his family, during a period of unemployment due to a labor dispute, simply because he neglects to notify his employer of his new employment. This law was intended to encourage employment, not discourage it, and during periods of economic stress caused by labor disputes the participants who must rely upon daily wages should be encouraged rather than discouraged in seeking other employment.

As has been pointed out by the majority opinion, the Unemployment Compensation Commission in May 1953, adopted *286what is called Official Interpretation No. 74, to serve as a guide in the consideration of the claims arising out of, and by virtue of a work stoppage. This memorandum is set forth in detail in the majority opinion. Subsection (i) of said memorandum lists, £ £ (i) The claimant’s intentions with regard to returning to his former employment when the stoppage of work which caused the labor dispute end[ed].” This subsection, as evidence in making a determination, raises some question when viewed in retrospect. "While there can be no question that the Unemployment Compensation Commission could set forth their examiner guidelines in these types of cases, it should be pointed out that here the strike commenced on August 19, 1959, and ended on February 16, 1960. I believe every ease before the court was heard by the appeals referee after February 16, 1960, and when the question was asked by the referee, as to what the intentions of the employee were under subsection (i), it would appear to me that it was grossly unfair.

There could be but one answer to the question at this time of claimant’s work career, that is, “Yes, he intended to return to the Anaconda plant at the termination of the strike. He has been unemployed by a labor dispute for a period of some six months. During this period he has by diligence secured another job which might well have been a permanent job had there not been some intervening circumstances over which he had no control that took him off that job.” The strike has ended, he has either gone back to work or is about to go back, and if he answers the question any differently he will place himself in a position where the employer could punish the employee who had been on strike. This, I do not feel, the Legislature intended to allow.

Having made no specific findings on the bona fides of the claimant’s efforts to secure new employment, and the fact that the decision of the Board, as affirmed by the majority of this court, is based upon what I think is a misunderstanding *287of the law relating to the matter of severance of the employment, I would sustain the decision of the district court in those eases where there has been a clear showing that the employment was of a permanent nature, and the employee for all intents and purposes established new employment and said new employment was not for the purpose of contravening the Unemployment Act.

In those cases where new employment met the standards set forth in the Hopkins and Bruley cases, I would say the employee’s last place of employment was not the Anaconda Company, but that employer who had the employee on the payroll over a period that would indicate permanent employment and would therefore be the last employer.