
    Leach, Admr., Bureau of Unemployment Compensation; Turner, Appellant, v. Republic Steel Corp. et al., Appellees. Leach, Admr., Bureau of Unemployment Compensation; Tomasula, Appellant, v. Republic Steel Corp. et al., Appellees.
    (Nos. 38129 and 38339
    Decided May 13, 1964.)
    
      
      Messrs, dayman, Sigall, Jaffy & Taylor, Messrs. Green, Schiavoni & Murphy and Mr. Herschel Kriger, for appellants.
    
      Mr. Walter J. Mackey and Mr. G. Frank Manak, for appellee Republic Steel Corporation.
    
      Mr. William B. Saxbe, attorney general, Mr. Bernard L. Heffernan, Mr. Frederic E. Whitker and Mr. Hubert Dutro, for appellee Board of Review, Bureau of Unemployment Compensation.
   Zimmerman, J.

The Ohio Unemployment Compensation Act was first enacted in 1936 and has undergone various amendments since that time. The fund out of which unemployment compensation is paid to employees is represented entirely by compulsory contributions on the part of employers and is in effect a tax on the privilege of doing business in Ohio. The purpose of the act and the fund is to enable unfortunate employees, who become and remain involuntarily unemployed by adverse business and industrial conditions, to subsist on a reasonably decent level and is in keeping with the humanitarian and enlightened concepts of this modern day.

In essence, appellants take the position that during the period of time after the injunction, when they were awaiting a summons to return to work, they were unemployed due to lack of work; that this was attributable to their employer’s failure to recall them; and that during such period there was no labor dispute and no continuation of a labor dispute within the meaning of applicable Section 4141.29 (D) (1) (a), Revised Code, properly interpreted.

On the other hand, appellees contend that a labor dispute was responsible for appellants’ unemployment prior to the effective date of the injunction, viz., November 7, 1959; that despite the injunction summarily terminating the strike the labor dispute continued; that the injunction did not affect such continuing dispute; that such dispute involved the terms and conditions of a new contract between the labor union and the employer; and that the labor dispute actually continued until January 4, 1960, when a new agreement was reached.

As generally understood, a “strike” is a cessation of work by employees in an effort to obtain more desirable terms with respect to wages, working conditions, etc., whereas a “labor dispute” is of broader scope and includes a controversy between employer and employees concerning wages, working conditions or terms of employment.

In support of their contentions, appellees rely on an open letter written by Arthur J. G-oldberg, then general counsel for the United Steelworkers of America and now a justice of the Supreme Court of the United States, admitted in evidence over objection as an exhibit and which reads in part:

“The strike had been interrupted, but our dispute continued. Negotiations took place during the 80 days. * * *

“On January 4, 1960, just one week before a vote was to be taken on the companies’ last offer, and three weeks before the injunction was to be dissolved, we concluded a strike settlement with the steel industry. The agreement is a good one, fully justifying the sacrifice we made to obtain it. Thus, although we were to be free to strike again on January 26, there is no longer any need to do so. Indeed, the knowledge that we were not only at liberty to strike again, but actually intended to, was a potent factor in inducing the employers to come to terms with us.”

The statute applicable to these cases plainly provided that an employee was not entitled to unemployment compensation during any week when his unemployment was due to a labor dispute. Here, there was a labor dispute culminating in a strike which forced the employer to close its plants. Once these plants were closed, they could not be restored to full operation immediately upon the termination of the strike. The reactivation of the plants was necessarily a gradual process, and the employer was not required to recall an employee to work until such employee’s department was readied and his services needed. It was the strike which caused the plants to cease operations in the beginning, and the time required to reactivate them as a result of the shutdown was attributable to a labor dispute which continued until the agreement of January 4, 1960. Consequently, appellants’ unemployment began and continued by reason of a labor dispute, even though the strike itself had come to an end.

This opinion could be carried to a greater length, but we feel it unnecessary to do so. It is our conclusion that the Board of Review, upon the evidence presented to it, was warranted in finding that a labor dispute existed within the plain language of Section 4141.29 (D) (1) (a), Revised Code, during the time for which appellants claimed unemployment compensation, and that appellants were unemployed over the period in controversy by reason of such dispute and were not entitled to the payment of unemployment compensation. We are further of the opinion that the lower courts correctly determined that the action of the Board of Review was neither unlawful, unreasonable nor against the manifest weight of the evidence.

There are a number of cases which could be cited buttressing our conclusion. Probably the one nearest in point with respect to the similarity of statutory terminology is that of Johnson v. Kentucky Unemployment Insurance Commission (Ky.), 367 S. W. (2d), 253.

As bearing on the subject, see, also, American Steel Foundries v. Gordon, 404 Ill., 174, 88 N. E. (2d), 465; Carnegie-Illinois Steel Corp. v. Review Board of Indiana Unemployment Compensation, 117 Ind. App., 379, 72 N. E. (2d), 662; Saunders v. Maryland Unemployment Compensation Board, 188 Md., 677, 53 A. (2d), 579; Legacy v. Clarostat Mfg. Co., 99 N. H., 483, 115 A. (2d), 424; Polinchak Unemployment Compensation Case, 175 Pa. Sup., 181, 103 A. (2d), 273; and Fort Pitt Mfg. Co. v. Unemployment Compensation Board of Review, 176 Pa. Sup., 162, 106 A. (2d), 672.

Compare Davis v. Aluminum Company of America, 204 Tenn., 135, 316 S. W. (2d), 24, where, under a statute limiting disqualification of a claimant for benefits to a “labor dispute which is in active progress,” unemployment compensation was allowed when the manufacturing plant was being prepared for resumption of work after an agreement had been reached.

The judgments of the Courts of Appeals for Stark and Mahoning Counties are affirmed.

Judgments affirmed.

Taut, C. J., Matthias, 0’Neill, Grieeith and Herbert, JJ., concur.

Gibson, J.,

dissenting. Under Section 4141.29 (D) (1) (a), Revised Code, as it existed on November 7, 1959, a covered employee was not entitled to serve a waiting period or be paid unemployment compensation for any week with respect to which the administrator found that the unemployment was “due to a labor dispute” and “for so long as such labor dispute continues.” The term, “labor dispute,” was not defined by the General Assembly; therefore, it is our ultimate responsibility to define the term in the factual context of these cases.

The appellants in these cases are employees of the Republic Steel Corporation and members of the United Steel Workers of America, AFL-CIO. The union, as authorized bargaining representative of these employees, had entered into a collective bargaining agreement with the company, covering the wages, hours, and working conditions of the employees and which was due to expire by its terms on June 30, 1959. Industry-wide bargaining sessions began on April 10, 1959, between representatives of 12 steel companies, including Republic Steel, and the union.

A new agreement not having been reached by the expiration date of the old contract, the parties mutually agreed to extend the existing contract until July 14, 1959. On the latter date, no agreement had been reached, the extended contract expired, and on July 15 the appellants and their fellow employees ceased work in a strike.

On October 21, 1959, a Pennsylvania federal district court, acting under the emergency provisions of the Labor Management Relations Act, 1947, enjoined the union and its members from engaging further in the strike and ordered that as long as there was no new agreement the employees “shall be employed under the terms and conditions of all agreements in effect on June 30, 1959.” This injunction became effective on November 7, 1959, when it was affirmed by the United States Supreme Court. A new collective bargaining agreement was reached on January 4, 1960, within the 80-day period of the emergency injunction.

Counsel for Republic Steel in argument to this court stated that some 40,000 to 50,000 employees returned to work on November 7,1959. According to the stipulated facts, the operations of Republic Steel are such that once shut down they can not be resumed immediately. The two employees involved in these cases, along with some 2,000 others, were recalled at the earliest possible date from the standpoint of production but in any event some weeks after November 7, 1959.

The appellants, who allege that they were ready, willing and able to return to work on November 7, 1959, applied for unemployment compensation from that date to the date when they were in fact recalled to work. The administrator alloAved ■ benefits on the ground that such employees were unemployed because of “lack of work.” The Board of Eeview, on its own motion, determined (two-to-one) that the employees were unemployed “due to a labor dispute” and hence were disqualified from receiving unemployment compensation.

This court clearly stated the proper premise for construing statutory language in paragraph one of the syllabus of Heidtman v. City of Shaker Heights (1955), 163 Ohio St., 109, when it said: “Where a statute is silent as to the meaning of a word contained therein and that word has both a wide and a restricted meaning, courts in interpreting such a statute must give such word a meaning consistent with other provisions of the statute and the objective to be achieved thereby.” Section 4141.46, Eevised Code, expressly provides that the Unemployment Compensation Act “shall be liberally construed.” See Adamski v. Bureau of Unemployment Compensation (1959), 108 Ohio App., 198.

The term, “labor dispute,” in the area of labor-management relations has a broad meaning. Disputes occur in the labor-management relationship with great frequency and over problems ranging from the trivial to the most vital. Obviously, the General Assembly did not intend to disqualify an employee for labor disputes about such matters as a job assignment, a pay raise, a discharge, a violation of a safety rule, or all of the myriad situations giving rise to a dispute between labor and management. The law was enacted to cover unemployment. Thus the term, “labor dispute,” should be restricted for the purpose of the Unemployment Compensation Act to a dispute between labor and management which causes unemployment. With this general standard in mind, consideration should be given to the statutory language and its legislative history.

The legislative purpose can be better understood by a comparative examination of the 1955 and 1959 provisions regarding disqualifications from receiving unemployment compensation, which are set forth below in tabular form. The capitalized words were omitted by the 103rd General Assembly in 1959 and the italicized words were added:

1955

4141.29 (0) 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 a 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;

1959

4141.29 (D) Notwithstanding division (A) of this section, no individual may serve a waiting period or be paid benefits under the following conditions: (1) For any week with respect to which the administrator finds that:

(a) His unemployment was due to a labor dispute other than a lockout at the factory, establishment, or other premises at which he is or was last employed; and for so long as such labor dispute continues.

The first important change made in statutory language in 1959 was the substitution of the term “for any week,” in lieu of the term, “for the duration of any period of unemployment.” By this change it is clear that disqualifications are to be considered on a week-by-week basis, i. e., each week of disqualification must stand on its own footing. If a labor dispute does not exist in the week in question, then benefits are payable. Unlike the majority I see no significant difference between the 1959 language, “for so long as such labor dispute continues,” and 1955 the language, “as long as such labor dispute continues.” The majority, however, disregards the deletion in 1959 of the most significant final clause of that sentence.

Prior to 1959, the labor dispute disqualification continued “for a reasonable period of time necessary for such factory or establishment to resume normal operations.” Unless we are to abandon the well-established presumption that the General Assembly will not do a vain or useless act, the deletion of this clause after being in existence for four years must be given significance. The only reasonable construction to be ascribed to the deletion of this very specific language is that the General Assembly intended to remove the disqualification for the period of time necessary to get the factory back to normal operation, regardless of the fact that there would have been no delay in normal production processes had there been no labor dispute.

Apparently, the primary purpose of the labor dispute disqualification is to prevent the Unemployment Compensation Act from being a factor in the causation or prolongation of labor disputes. In other words, the disqualification precludes the use of unemployment benefits as a weapon against an employer by using them to finance a strike against him. Here the strike ended on November 7, 1959, so the payment of unemployment benefits could not constitute a use of such benefits to finance a strike against Republic Steel.

By federal court order, effective November 7, 1959, the employment relationship continued under the terms and conditions of the collective bargaining agreements in effect on June 30, 1959. The only dispute which continued was over the terms and conditions of employment which would prevail in the future under a new contract. Negotiations for a future contract continued until a new agreement was reached within the 80-day “cooling off period.” These negotiations were no different from the negotiations which occurred prior to the strike. Without question, these negotiations did not cause unemployment in the weeks in question.

I fail to understand how the negotiations of a future contract by parties, who by court order continue a work relationship governed by the terms and conditions of contracts in effect before the strike, can be said to constitute a “labor dispute” within the meaning of the Unemployment Compensation Act. Apparently, the federal district court was of the same opinion when it said in its order of January 26, 1960, that “there was and could be no dispute between the employer defendants and the union on November 7, 1959, or thereafter with respect to the employment status of the members of the United Steelworkers of America subject to this court’s injunction, for the period of this court’s injunction.” This is all the more difficult to understand where, as a practical matter, 40,000 to 50,000 employees were recalled immediately, and the remaining 2,000 employees (including the appellants) were not recalled to work because of the inability of the employer to get the production processes, where they worked, back in operation immediately.

In 1963, the General Assembly amended Section 4141.29 (D) (1) (a), Revised Code, by broadening the provisions for labor dispute disqualification by substituting the words, “and for so long as his unemployment is due to such labor dispute,” in lieu of the words, “and for so long as such labor dispute continues.” By this amendment the disqualification is at least as comprehensive as it was from 1955 to 1959. The court today by its construction of the words, “labor dispute,” has obliterated the difference in statutory standards which existed between 1959 and 1963 and has in effect retroactively applied the 1963 labor dispute disqualification. The majority opinion fails to take into consideration the plain fact that the only reason the appellants and 2,000 other employees, similarly situated, were not called back to work on November 7, 1959, when some 40,000 to 50,000 employees were recalled, was that there was no work for them because the factory was unable to resume full normal operations immediately.

In conclusion, I do not believe it is necessary that a collective bargaining agreement be executed in order to terminate a “labor dispute” within the meaning of Section 4141.29 (D) (1) (a), Revised Code. Rather, for the purpose of the Unemployment Compensation Act, the labor dispute terminated on November 7,1959, when the 80-day emergency injunction granted under the Labor Management Belations Act, 1947, became effective.  