(dissenting).
Although, there are numerous reasons for this dissent, I will urge only two points: (1) the present holding creates judicial uncertainty; and (2) the present holding is wrong.
I.
Judicial Uncertainty. This case is an attack on the Opinion of this Court in Thornbrough v. Schlenker, 228 Ark. 1012, 311 S. W. 2d 753. That Opinion was delivered on April 7, 1958 by a unanimous Court; and now, after seven years, the present Majority is saying: ‘ ‘.. . we find the Opinion and its resultant ramifications to be untenable.” Bear in mind that in 1958 this Court announced, in a unanimous Opinion, a yardstick whereby all concerned — the Commissioner of Labor, the labor unions, the employers, and the employees ■— would know how to proceed. We said:
“It is impossible to reconcile all of the various cases, A reasonable distinction between the two lines of decisions might be this: if, by the contract between the Union (the agent of the workers) and the management of the plant, there was reserved by the management of the plant the right to fix, at its own option, a plant wide vacation period, then the employees had agreed to such vacation and had been ‘voluntarily unemployed’; and, therefore, not entitled to employment benefits. But if the contract had no provision whereby the management reserved the right to fix, at its own option, a plant wide vacation shutdown, then the employees had not agreed to such vacation period and were ‘involuntarily unemployed’ during such shutdown period; and being involuntarily unemployed, they were entitled to unemployment compensation. ’ ’
The test of voluntary unemployment as opposed to involuntary unemployment during the period of a plant vacation was simply and succinctly stated. If what we said in' Thornbrough v. Schlenker was in error, the Arkansas Legislature could have changed it hy legislative enactment. Since 1958 there have been four regular sessions of the Arkansas Legislature — 1959, 1961, 1963, and 1965 — and there has been no legislative enactment to overcome the Opinion. If there was to be a change, it should have been by legislative enactment rather than by judicial decision, because a legislative enactment is prospective, whereas a judicial decision is retroactive. In Carter Oil Co. v. Weil, 209 Ark. 653, 192 S. W. 2d 215, this distinction was stated.
If the Majority of the Court desires to re-examine the correctness of our language in Thornbrough v. Schlenker, the Court could now issue a caveat that in all transactions arising after this date we will be free to reexamine the correctness of our language in Thornbrough v. Schlenker. This caveat method has been used in several cases since the usury cases1 and has been a notice to the public. It is fair. But the present holding, in changing the rule announced in Thornbrough v. Schlenker, is retroactive and creates uncertainty as to the stability of judicial holdings. If the Arkansas Supreme Court is'to change its holdings whenever the same question is again presented, our holdings will have become as uncertain as those of some other courts which have a tendency to reexamine every question whenever there is a change of personnel on the court. The Bench and Bar, and the public generally, have contracted in reliance on the holding in Thornbrough v. Schlenker. How will anyone know that the rule will not be changed again when the question is next presented to this Court? The present holding creates judicial uncertainty.
II.
The Present Holding Is Wrong. The basic question is: “When is a worker involuntarily unemployed?”, It is only when he is involuntarily unemployed that he can qualify for unemployment compensation benefits. Inyoluntary unemployment means unemployment without his own volition. When he works under a contract that provides that the plant may be shut down for a two weeks vacation — whether with or without pay — he cannot be heard to say that during that two weeks period he was involuntarily unemployed, since he had agreed to such vacation period.
Under the National Labor Relations Act, when a union becomes the bargaining agent for the employees at a plant it is the bargaining agent for all employees, not just those who belong to the union. In Thornbrough v. Schlenker there was no provision in the contract for a plant wide vacation period; but in the contract here involved there is a definite provision for a plant wide vacation2 period. The contract is dated November 27, 1962 (several years after the Schlenker Opinion) and is a document of some thirty typewritten pages. Section 13 of the contract concerns the matter of vacation,2 and provides:
“The COMPANY will close the plant the calendar week which includes the first Monday in June and during the following calendar week for the purpose of providing vacations to those employees who are entitled to vacation benefits except that in cases where process requirements make this impracticable (such as a tannery) the closing will start on the first working day of the week which includes the first Monday in June and will progress thereafter through the plant as rapidly as the process permits and work will resume two weeks after the last day worked before vacation started . . . “Upon request of either the employees or the COMPANY not later than April 15th the matter of changing the plant closing for the purpose of granting vacations will be discussed. If the parties are unable to agree as to any proposed changes, the plan as written herein shall remain unchanged. ’ ’
Thus we have a contract which provides exactly when the plant should be shut down for summer vacation. How can anyone say that he was “involuntarily unemployed” during such vacation period when he was working under a contract that specified the dates for the summer vacation? These men were certainly “voluntarily unemployed” during the annual vacation period covered by this contract; and no amount of judicial legerdemain can change that fact. The contract here involved was negotiated in 1962. If the union had wanted to provide that any man who did not get vacation pay would be considered involuntarily unemployed the contract had only to so state in one sentence; and yet there is no such provision in the contract here involved.
Since our decision in Thornbrough v. Schlenker the question here presented has been before the Supreme Court of Mississippi in the case of Mississippi State Employment Sec. Com’n. v. Jackson (decided January 11, 1960), 116 So. 2d 830. The language of the Supreme Court of Mississippi is so clear that I quote it and adopt it as my own:
‘ ‘ The question for our decision involves the right to unemployment compensation for a period when the plant was shut down for vacations in accordance Avith the union contract.
“In order to be entitled to unemployment compensation benefits under the statutes, an employee must be involuntarily unemployed and must be available for work, and it follows that if the employees are voluntarily unemployed and were not available for work within the meaning of the statute, the Commission was justified in denying unemployment benefits.
“The courts of Mississippi have not passed on this question. The case of Moen v. Director of Division of Unemployment Security, 324 Mass. 246, 85 N. E. 2d 779, 8 A.L.R. 2d 429, is directly in point. In that case the union contract was silent as to the status of those employees not entitled to vacation with pay Avhile the plant was shut down for vacations of those employees entitled to paid vacations, and the union contract permitted the company to designate any period of temporary shutdoAvn as the vacation period. The Court held that those employees who were not entitled to vacation with pay were on vacation without pay. The basis of the decision denying benefits to those employees who were not entitled to vacations with pay was that such employees were voluntarily unemployed. Other similar holdings are Mattey v. Unemployment Compensation Board of Review, 164 Pa. Super. 36, 63 A. 2d 429; In re Buffelen Lumber & Mfg. Co., 32 Wash. 2d 205, 201 P. 2d 194; Jackson v. Minneapolis-Honeywell Regulator Co., 324 Minn. 52, 47 N. W. 2d 449; In re Claims of Rakowski, 276 App. Div. 625, 97 N.Y.S. 2d 309; Naylor v. Shuron Optical Company, 281 App. Div. 721, 117 N.Y.S. 2d 775; In re Graziadei’s Claim, 286 App. Div. 911, 142 N.Y.S. 2d 380; General Electric Co. v. Unemployment Compensation Board of Review, 177 Pa. Super. 49, 110 A. 2d 258; Philco Corporation v. Unemployment Compensation Board of Review, 175 Pa. Super. 402, 105 A. 2d 176; Glover v. Simmons Co., 17 N. J. 313, 111 A. 2d 404.”
When one considers that the Mississippi case, and all .the other cases which the Mississippi opinion cites have the same rule that was announced by us in Thornbrough v. Schlenher, it is hard to see how the Majority of the Arkansas Court can now say that such rule is “untenable.”
The Majority Opinion quotes from Ark. Stat. Ann. § 81-1118 (Repl. 1960): “Any agreement by an individual to waive, release, or commute his rights to benefits or other rights under this Act shall be void.” This quotation leaves the impression that by the employment contract in this case’the workers are waiving or releasing their rights to draw unemployment compensation. I think such conclusion misses the entire point. Certainly a worker cannot “waive” the benefits of the Unemployment Compensation Act, but when he becomes employed he is not unemployed; and when a worker is employed he is not entitled to the benefits of the Unemployment Compensation Act. These appellants in this case are employed under a contract which gives them paid holiday as therein specified and which provides that when the plant is shut down they are voluntarily unemployed. While they are under such contract they are certainly not “involuntarily unemployed.” That is the test for their right to receive unemployment benefits.
For the reasons herein stated, I dissent.
Paul Ward, Associate Justice,(dissenting). My purpose in dissenting is to attempt to bring some sort of order out of obvious confusion and to formulate a simple, workable rule to apply when the issue here involved arises. I fully realize this attempt may be fruitless.
I am not in complete agreement with the majority opinion or with the Schlenker case. The majority opinion in effect holds that an employee cannot, under any kind of contract or arrangement, agree to take a vacation without pay (and be unable to draw E. S. D. benefits) for a short period of time even though (under the contract) it would be to his financial advantage to do so. Such a conclusion, in my opinion, is illogical, unsound, unreasonable, and inequitable. I do not agree entirely with the Schlenker case, because, in my opinion, it does not sufficiently protect the employee from being the victim of an ■ inequitable contract. I readily agree that it would be a violation of Ark. Stat. Ann. § 81-1118 (a) (Supp. 1963) to allow an employee to agree (for example) to a four month vacation without pay, and then for this Court to hold he could not draw E. S. D. benefits.
The rule, in a case of this nature, which embodies my views and which easily could be applied to any factual situation, is this: Let the Employment Security Division (through its administrative agencies) decide (subject to approval by the courts) whether the employee (in any labor-management contract) has bartered away any of his unemployment benefit rights. If it be determined that he has done so, then he is involuntarily unemployed — otherwise, he is voluntarily unemployed.
See Hare v. Gen. Contr. Corp., 220 Ark. 601, 249 S. W. 2d 973; Crisco v. Murdock, 222 Ark. 127, 258 S. W. 2d 551; and see also Clubb v. State, 230 Ark. 688, 326 S. W. 2d 816.
The contract stated that if any person had worked for as long as one year he would get one week vacation with pay; if he had worked not less than five years he would get two weeks vacation with pay; and if he had worked longer he would get three weeks vacation with pay.