The opinion
ARNOLD, J.
(dissenting). Where the language used by the Legislature is plain, unambiguous, and subject to but one construction, no interpretation to determine its intention is necessary; however, where the situation is otherwise, it is the sole function of the court to determine the intention of the Legislature from the language used and all other existing circumstances and so construe the language used as to effectuate its intention if possible. In the first place I do not believe the language used by the Legislature is susceptible of the construction placed on it by the majority, and in the second place all the circumstances, and particularly the other provisions of the act, indicate unmistakably a contrary intention on the part of the Legislature from that determined by the majority. It appears to me that the majority have seized upon poor context, if it be such, or inexact technical usage of words as furnishing an opportunity to change the evident policy of the Legislature. Whether the legislation is good or bad, as such, according to our personal views, this should not be done. There has been no determination that the strike in question was just or unjust, and we should just try to determine from-the language used and all other circumstances what the Legislature intended; when its intention is determined it governs.
Admitting for the sake of argument that the language used by the Legislature is ambiguous, did the Legislature intend to disqualify all strikers, under all circumstances, for benefits under the act, or did it intend to disqualify strikers only when the strike produces a stoppage of production, and therefore lessens the profits of the employer?
In approaching this question it should be kept in mind that the act confers upon the Labor Commissioner authority to appoint a claims deputy, and through him conduct hearings on all pertinent matters related to the reasons and causes for and justifiableness of the unemployment of any claimant under the act except in cases of claims of strikers. The act also provides for a Board of Review appointed by the Governor. All claims of persons, whose unemployment results from labor disputes, must be reviewed and determined by this nonpartisan board. The claim in question in this case was presented to the Board of Review appointed by the Governor and determined by it on the evidence submitted. The Board of Review found that the claimant had been discharged. It made no determination that the claimant was unemployed voluntarily with or without cause, nor did it make any determination of the question of whether or not the strike was justified or unjustified. An appeal to the district court was taken and it was there determined that the claimant was not discharged and that strikers could, under no circumstances, receive benefits under the act.
Under section 4 of the act one is generally qualified if he is unemployed, registers at the unemployment office, and reports in accordance with the regulations prescribed by the commissioner, makes a claim for benefits and is able to and available for work. Unquestionably the claimant in this case was generally qualified under the requirements of section 4. He is, therefore, entitled to benefits unless specifically disqualified for some reason designated by the Legislature.
The controversy presented is confined to the question of specific disqualification under section 5 of the act. Said section purports to set forth the specific disqualifications intended by the Legislature and prescribes the duration thereof. Therein it is provided that an employee shall be -disqualified if “he has left work voluntarily without good cause, if so found by the commissioner, ...” for a period of two to five weeks, to be determined by the commissioner according to the circumstances in the case. (Subdivision a.)
It is also provided that if “he has been discharged for misconduct connected with his employment, if so found
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by the commissioner, ...” he shall be disqualified for a period of two to ten weeks as determined by the commissioner according to the “seriousness of the misconduct.” (Subdivision b.)
It is further provided by the act that a claiming employee is barred for benefits if, being totally unemployed,
“(1) He refuses to ‘apply for available, suitable work when so directed by the employment office or the commissioner, . . .’ ”
“(2) He fails to accept available and suitable work offered him by the employment office or other employer.
“(3) He refuses to return to ‘his customary self-employment (if any) , when so direcetd by the commissioner.’ ” (Subdivision c.)
It is also provided that:
“No work shall be deemed suitable, and benefits shall not be denied under this act to any otherwise eligible individual for refusing to accept new work under any of the following conditions:
“(a) If the position offered is vacant due directly to strike, lockout or other labor dispute;
“(b) If the wages, hours or other conditions of the work offered are substantially less favorable to the individual than those prevailing for similar work in the locality;
“(c) If as a condition of being employed. the individual would be required to join a company union or to resign from or refrain from joining any bona fide labor organization.” (Subdivision (c) (2) (a, b, c.)
Then follows the disqualifying clause construed by the majority opinion. It provides an individual shall be disqualified for benefits
“For any week in which it is found by the commissioner that his total or partial unemployment is due to a stoppage of work which exists because of a labor dispute at the factory, establishment or other premises at which he is or_ was last employed, provided that this subsection shall not apply if it is shown to the satisfaction of the commissioner that:
“(1) He is not participating in or financing or directly interested in the labor dispute which caused the stoppage of work; ...” (Subsection d.)
The foregoing provisions of sections 4 and 5, supra, show on their face why I cannot agree with the majority opinion. When the language therein used by the Legislature is given its fair and obvious meaning, the conclusion is inescapable that the expression “stoppage of work” in the quotation from section 5 (d), supra, refers only to stoppage of production at the plant or a distinct unit thereof. The only reasonable construction that can be placed on this subdivision is that the employee claiming compensation under the act cannot recover if there exists a stoppage of production at the plant or factory by reason of a strike in which the claimant is a participant.
The expression “for any week in which it is found by the commissioner that
his
total or partial
unemployment
is
due
to a
stoppage of work
which
exists
because of a labor dispute at the factory” permits of no other construction. The construction placed on this subdivision of section 5 by the majority says, in effect, that' the Legislature said the same thing twice in one sentence. If true, this would be an uncommon occurrence, at least. If you strike out of this provision the words “total or partial unemployment is due to a,” or if instead you strike out the words “is due to a stoppage of work which,” the provision would mean exactly what the majority opinion holds it means as it now appears in the statute. It is obvious to me that the Legislature meant what I think it said, that is, that a claimant under the act cannot recover for total or partial unemployment occasioned by a strike that results in a stoppage of production at the factory unless such claimant was not participating in the strike. The majority opinion says that “stoppage of work” refers to the employee’s “stoppage.” The provision reconstructed under the interpretation would read “For any week in which it is found by the commissioner that his (the employee’s) total or par
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dal
unemployment is due to his stoppage of work which exists
because of a labor dispute at the factory ...” This demonstrates that the provision is incapable of the construction placed on it by the majority.
The succeeding Legislature, in 1939, recognizing this situation and no doubt having determined on a different policy, had no difficulty in expressing its intention in this regard. It said that an employee would be disqualified “for any week in which it is found by the commissioner that
his
total or partial unemployment is due to a labor dispute at the factory, establishment or other premises at which he is or was last employed; provided, that this subsection shall not apply if it is shown to the satisfaction of the commissioner that: (1) he is not'participating in or financing or directly interested in the labor dispute which caused
his unem
ploymentNote here the Legislature left out the expression “stoppage of work,” but the word “unemployment” is used in the same connection and with the same application as in the 1936 act. Unquestionably, under the plain import of the language used by the Legislature in the foregoing provision of the 1939 act, an employee could not claim benefits under the act if
his unemployment
is occasioned by his participation in a strike. Whether there was a “stoppage” of production at the plant would make no difference. The interpretation placed on the 1936 act makes this amending section of the 1939 act useless and unnecessary.
Then in 1941 the Legislature again decided to change its policy. It provided. disqualification for benefits “for any week with respect to which the commission finds that his unemployment is due to a
stoppage of work which exists at the factory,
establishment or other premises at which he is or was last employed, because of a labor dispute . . .” All the parties herein virtually admit that a striking employee could recover under that act if the employee were not otherwise disqualified and there was no stoppage of production.
There is no appellate court decision construing an act similar to ours that holds in line with the majority opinion. In the West Virginia case' cited there was a labor dispute and a shutdown, production was not resumed, and there was no controversy as to whether the expression “stoppage of work” referred to stoppage of production at the factory or the stoppage of work of the employee. Obviously, that case is hot an authority in support of the majority view. The West Virginia court was not discussing the question here under discussion when it used the language referred to in the majority opinion.
The question in the West Virginia case was whether or not a labor dispute caused the unemployment and the shutdown. In that case, as here, there was no contention that a labor dispute, resulting in unemployment and shutdown or cessation of production at the plant, would not disqualify those employees participating in the dispute. The West Virginia court held that a disagreement between employees and their employer as to the terms of a labor contract which caused the employees to quit work constituted a labor dispute or strike within the purview of the West Virginia act, which is very similar to ours. The West Virginia court accordingly held that where such a disagreement results in stoppage of employment, a labor dispute exists under the act and the employees participating therein were disqualified, since there was a shutdown or “stoppage of production” at the plant. It is admitted herein that the employee in our case would also be disqualified under the same circumstances. The second paragraph of the syllabus in the West Virginia case will unmistakably demonstrate the correctness of the foregoing differentiation.
In the two Indiana cases cited you have generally the same situation that existed in the West Virginia case. The Indiana statute is very similar .to ours in the respect under consideration. There was a shutdown or stoppage of production at the plant. The contention made in the cases was that there was
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not a labor dispute and, as in the West Virginia case, the Indiana Supreme Court held that a disagreement between employees and their employer as to the terms of a labor contract, which resulted in unemployment and a shutdown, amounts to a strike or labor dispute within the purview of the act and the participating employees were disqualified. Obviously the problem that we are dealing with in the instant case was not before the Indiana court. There is no discussion in the Indiana opinions on the question of what the expression “stoppage of work” refers to. It was contended therein that the stoppage of work was not due to a labor dispute.
The California case cited arose under-an act very similar to our 1939 act. The provision therein construed reads “an individual is not eligible for benefits for unemployment, and no such benefits shall be payable to him under any of the following conditions: (a) If he^ left his work because of a trade dispute and for the period during which he continues out of work by reason of the fact that the trade dispute is still in active progress in the establishment in which he was employed.” It is obvious that any interpretation of the California court on .the foregoing provision of the California act would not be applicable here. By reason of the apparent dissimilarity of the California statute, the problem we have for solution could not arise in California. There is no discussion therein on the question of what the expression “stoppage of work” relates to.
There is no judicial precedent supporting the construction placed on the particular section of our act by the majority. Such' construction is contrary to the interpretation of all administrative officers that I have been able to find and contrary to the expressed views of all text writers and authors of law reviews which have come to my attention. The expressions “stoppage of work” and “stoppage of production” used in the disqualification clauses of the various Unemployment Compensation Acts of the states have been universally interpreted to mean a substantial curtailment of work in an establishment,
not the cessation of work by a claimant.
In view of the fact that the majority opinion is bottomed upon the application of the expression “stoppage of work” to the claimant, and in view of the further fact that there are several instances designated by the act in which an unemployed claimant is specifically justified in voluntarily quitting his job or in refusing to accept work offered, I am at a loss to understand why the author of the opinion makes the statement:
“Whether a person in good health and in possession of his faculties is ever unemployed through no fault of his own has long been a topic of heated debate, but, regardless of the disagreement that invariably arises in such case, one who is out on strike can hardly be said to be unemployed through no fault of his own. Whether his cause is just or unjust is beside the point.”
Under the act an unemployed workman is justified in refusing offered work if the wages, hours, and other conditions of the work offered are substantially less favorable to the individual than those prevailing for similar work in the locality and if the position offered is vacant by reason of strike, lockout, or other dispute, the unemployed person would not be obliged to accept the position. Under the specific terms of the act the unemployed individual would not be required to accept employment if to do so would require that he join a union or resign from a labor organization. Suppose a strike is in progress for the purpose of correcting wages, hours, or other conditions which are admittedly less favorable to the strikers than those prevailing for similar work in the locality. Surely it must be admitted that such a strike would be justifiable, under the spirit of the act, so long as lawfully conducted. Then how could it be said “One who is out on strike can hardly be said to be unemployed through no fault of his own,” and “Whether his cause is just or unjust is beside the point?” The conclusion is inescapable that the Legislature thought such a
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cause would be just under those circumstances, and it provided that a refusal to accept employment under those conditions would not prohibit a claim for compensation under the act.
Strikes lawfully conducted are generally recognized as lawful methods of exerting economic pressure in ordinary times. (This case arose long before the outbreak of the present war.) At least strikes are not prohibited under our law and it is easy to imagine conditions of labor that would not only justify but demand lawful action on the part of employees to better their working conditions and promote social security - among the laboring people.
Unquestionably the Legislature has the power to make striking employees eligible for compensation benefits where there is no shutdown or substantial stoppage of work at the plant. It is not the function of the courts to determine the policy the Legislature should follow in this regard. Its function is to determine what policy the Legislature has established. As long as strikes are lawful and conducted in a lawful manner, it must not be assumed that lawfully conducted strikes are for other than the meritorious purpose of relieving burdensome and unjust laboring conditions and for the ultimate purpose of better-, ing the social and economic conditions of the laboring people. The whole Unemployment Compensation Act was, no doubt, devised for the general purpose of preventing insecurity among this large class of people.
Assuming for the sake of argument that the provision construed is ambiguous and it is necessary to determine the intention of the Legislature, I am forced to the conclusion that the Legislature did not intend that striking employees should be disqualified unless their unemployment caused a material reduction in production at the plant where last employed. In attempting to solve this problem we should first take into consideration the general economic condition maintaining at the time the act was passed by the Legislature in 1936. Unemployment legislation was in process of enactment and developmental! over the ' country. Security against unemployment was a vital problem. The legislative history of the development of our Unemployment Compensation Act to the present date should be given proper consideration in determining this question. As hereinbefore indicated, the act authorizes and makes it the duty of the commissioner to make investigations and determine the facts in each case and the act invests the commissioner and Board of Review with broad discretion in determining claims arising. It is specifically provided in the act that one who voluntarily quits his employment without cause, if so determined by the commissioner, may be disqualified for only a very limited period of time; that one who is discharged for misconduct can be disqualified under the act, in the discretion of the commissioner or claims deputy appointed by him, upon investigation and according to the facts disclosed, for only two to ten weeks. The act contemplates that one who registers and reports, as instructed, at the employment office designated, and is able, ready, and willing to accept available and suitable work, is generally qualified, and the act specifically provides that an unemployed individual is justified in refusing to accept employment where the wages and conditions of labor are not up to par in that locality or where his acceptance of employment would require him to be a strike breaker, join or resign from a union, or refrain from joining a bona fide labor organization. The act vests authority in the Labor Commissioner and the employment office, in the exercise of their discretion, to direct an unemployed individual to seek employment elsewhere or to accept a designated job or to return to his former employment, and the act provides in this connection that refusal to do as directed in these respects shall bar his right to benefits.
Does it appear reasonable that the Legislature intended that one on lawful strike, whose unemployment has not produced a material decrease in the production of his employer, should be
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disqualified for benefits in the face of the foregoing provisions? Is it reasonable 'to say that the Legislature intended that one discharged for misconduct should be disqualified for only two to weeks while one striking for better working conditions should be forever barred? One who voluntarily goes on a strike is certainly no worse than one who voluntarily quits without good cause, but the majority view, in effect, says that the Legislature intended that one striking for good cause but who produces no material change in production is unjustified and not entitled to the benefits of the act. It says that a striking employee is at fault and forever barred in spite of the fact that one discharged for misconduct is only at fault to the extent that he is slightly disqualified. Misconduct can never be justified and one unemployed because of his discharge, occasioned by his misconduct, unquestionably is at fault, and one who quits work without cause is certainly voluntarily unemployed.
The Legislature intended that it be determined by the nonpartisan Board of Review whether or not one on strike is voluntarily unemployed for good cause and therefore justified and not- disqualified at all. The Commissioner of Labor, under the act, may determine that one who is discharged for misconduct should not be disqualified for even the short maximum of ten weeks. Why then should we think that the Legislature intended that one who has a lawful right to strike and is not guilty of misconduct if he acts lawfully in his striking activities should be barred without regard to the justifiableness of the strike?
There is still another very distinct and positive reason why I cannot agree with the majority opinion in this case. The company wrote the employee, as disclosed by the record and majority opinion, notifying him that it was convinced, by evidence in its possession, that he was guilty of having committed unlawful acts. Without reservation it stated to him: “You are hereby discharged, for cause, as an employee of the Mid-Continent Petroleum Corporation.” In compliance with the trade agreement existing between the company and the employees’s union, the discharged employee was told that he might interview his department head or superintendent and suggested to him that “We will be glad to rectify any error which we might have made.” The trade agreement provides that an employee guilty of misconduct may be discharged; it also provides for an opportunity on the part of the employee, if he so desires, to present his side of the case in an effort to convince the employer that his discharge was not justified. Of course, such privilege was provided for the benefit of the employee. Naturally, if he does not care to exercise the privilege, he may forego it and accept the discharge as intended by the company as a complete severance of the relationship of employer and employee.
The letter of discharge in this case, as the simple, direct, and positive language used by the company indicates, was without reservation or condition. The indication or intimation therein that the employee might be reinstated upon proper showing cannot be construed as making the discharge conditional. However this may be, a direct promise of reinstatement, upon proper showing to be made by the discharged employee, would effectuate the discharge of the employee if the privilege accorded were not exercised. The company intended to sever the relationship of employer and employee at least until a satisfactory showing should be made by the employee and reemployment effected by the employer; so, assuming for the sake of argument (which cannot be reasonably done in this case) that the discharge was conditional, the privilege extended to make a showing and bring about reinstatement was not exercised and the intention of the company to completely discharge the employee in question was effectuated. Certainly it is in no position to contend otherwise. The claimant employee filed his claim for compensation on the ground that he was discharged and he testified that he accepted the letter as
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a discharge. From the date of his discharge
he
should be considered, under the provision of the act hereinbefore referred to, as a discharged employee; if it should be determined that he voluntarily left his employmnt for good cause, he should suffer no disqualification; if it should be determined that he left his employment without good cause or by reason of misconduct and discharge, he should be disqualified in conformity with the act according to a proper determination of the seriousness of the offense.
For all of the foregoing reasons, I am obliged to respectfully dissent.