Laclede Gas Co. v. Labor & Industrial Relations Com.

PUDLOWSKI, Judge,

dissent.

I respectfully dissent. I believe that the question of whether a “stoppage of work” existed was a question of fact, and that the Commission’s decision on this factual issue was supported by competent and substantial evidence.

The majority asserts that the facts were “undisputed” and that “the Commission’s decision indicated no dispute concerning any fact matter.” I cannot agree. The existence vel non of a stoppage of work is universally regarded as a factual question, the resolution of which depends on the facts and circumstances of each case. See cases cited in Annot., 61 A.L.R.3d 693 ; Lewis, “The ‘Stoppage of Work’ Concept in Labor Dispute Disqualification Jurisprudence,” 45 U.Det.J.Urb.L. 319, 321-322 (1967) (hereinafter “Lewis”). The parties to this case stipulated only that the claimant’s unemployment was “due to a labor dispute” and that all of the claimants were either participating in or financing or directly interested in the dispute. They did not agree on the ultimate factual issue of whether a stoppage of work existed. At the evidentiary hearing before the appeals tribunal, both parties introduced statistics and oral testimony detailing the extent to which the strike had affected normal activities, production, and services at Laclede. The claimant’s evidence tended to show that the effect had been minimal; Laclede’s evidence tended to show that it had been substantial. The Commission’s decision recognized and was based upon the existence of a factual dispute. After reviewing the stipulations and some of the evidence presented, it observed that “[t]he only factual issue to be decided in this matter is whether or not a stoppage of work existed during the period September 12, 1979 through February 10, 1980.” It went on to hold that no work stoppage existed.

The Commission’s decision can be reviewed as a matter of law only if the facts were not in dispute. “If ... ultimate facts or factual inference exist to which the parties have not stipulated, the court reviews conceded facts in a light most favorable to the respondent and disregards inferences favorable to the appellant.” (Emphasis added). McHenry v. Claspill, 545 S.W.2d 690, 693 (Mo.App.1976); Adams v. White, 488 S.W.2d 289, 298 (Mo.App.1972); Semo Motor Co. v. National Mutual Insurance Co., 383 S.W.2d 158, 161 (Mo.App.1964). “The court may not substitute its judgment on the evidence and may not set aside an administrative decision unless the decision is contrary to the overwhelming weight of the evidence. [Citing cases] .... If evidence before an administrative body would warrant either of two opposed findings, the reviewing court is bound by the administrative determination, and it is irrelevant that *657 there is supportive evidence for the contrary finding. [Citing cases.]” Pulitzer Publishing Co. v. Labor and Industrial Relations Commission, 596 S.W.2d 413, 417 (Mo. banc 1980). I believe that the Commission, after reviewing the whole record, could reasonably have determined that no stoppage of work existed.

The majority gives great significance to the evidence that activities in Laclede’s 22 departments “were curtailed in various percentages ranging from 10 per cent to 100 per cent,” averaging between 75.4 per cent at the beginning of the strike and 69.6 per cent at the end. Detailed figures for various departments are quoted in footnote 8 of the majority’s opinion. The majority asserts that “these are the facts determined by the Commission,” and that “no one question[ed]” them on this appeal. The record, I believe, does not support these assertions. The figures quoted by the majority are derived from Laclede’s Exhibit “A,” introduced in the hearing before the appeals tribunal. The claimants attempted to impeach the testimony of a witness who helped to prepare the exhibit for Laclede. The witness, on cross-examination, explained that the figures were arrived at by “approximation” and by comparison with what company officers “assumed” would have been done otherwise. The exhibit was based in part on company records, but was prepared specifically for purposes of litigation. The exhibit on its face discloses that the 75.4 per cent and 69.6 per cent “total” curtailment figures were arrived at by simply averaging together the approximated figures from each of the 22 departments listed. No effort was made to evaluate or weigh these figures according to the relative size or importance of each department, based on their respective contributions to revenue or profit, their relative payroll or overhead costs, distinctions between legally required activities and optional ones, or any other such factors. For example, an asserted 90% reduction in the printing department, which employed 5 union employees, was given equal weight with the 90% reduction in the construction and maintenance department, which included 502 union employees. The percentages reported did not take into account subcontracting of work in the construction and maintenance, transportation, receiving, printing and data processing departments. No consideration was given to the fact that gas distribution and the company’s revenue stream were uninterrupted during the strike. I am unable to characterize statistics of this type as “undisputed facts.” The record as a whole clearly discloses that the claimants vigorously disputed the validity and significance of Lac-lede’s statistics in relation to the ultimate issue of whether a stoppage of work existed.

It was the function of the Commission to weigh the evidence and assess the credibility of witnesses. John Epple Constr. Co. v. Labor & Industrial Relations Commission, 647 S.W.2d 926 (Mo.App.1983). It could choose to believe all or none of any witness’ testimony, Doerer v. Labor & Industrial Relations Commission, 617 S.W.2d 501, 504 (Mo.App.1981), and was not required to accept all of the evidence presented by Lac-lede even though there was no direct testimony in opposition to that evidence. Chemtech Industries, Inc. v. Labor & Industrial Relation Comm’n, 617 S.W.2d 121, 124 (Mo.App.1981). So long as two different conclusions or inferences could be drawn as to the ultimate fact in issue, the question did not become one of law. Cross v. Industrial Commission, 359 S.W.2d 494, 500 (Mo.App.1962). Although Laclede asserts that it maintained only “bare bones” operations during the strike, a careful review of the evidence discloses that the Commission could reasonably have found a good deal of muscle on those bones. The heart of Lac-lede’s business — gas service to customers— was maintained; all emergencies were taken care of; data processing activities continued at 90% of normal levels; revenue from customers continued to flow in at the same time that significant wage expenses were being saved due to the strike. The Commission recognized that some of Lac-lede’s “activities” were curtailed but ultimately concluded that those activities did not amount to a substantial curtailment of *658 Laclede’s overall operations. Regardless of what this court thinks of that conclusion, I believe that it was a factual decision, that it was supported by substantial evidence, and that we are bound to affirm it.

A careful reading of the Commission’s decision also discloses that the Commission did not place “sole emphasis” on the factor of production contrary to the mandate of § 288.040.5(2) RSMo 1978. The four cases cited by the Commission in support of its decision are clearly and explicitly based upon an examination of the employer’s overall operations. Tri-State Motor Transit Co. v. Industrial Commission, 509 S.W.2d 217 (Mo.App.1974), applied § 288.040.5(2) by examining such factors as the number of employees working, the amount of business being handled, and gross revenues. Id. at 223-225. The court in Tri-State recognized that “courts tend to concentrate on the diminution of the activities of production in determining the question of existence of a stoppage of work,” Id. at 225, but clearly understood that production was only one aspect of the statutory standard. Continental Oil Co. v. Board of Labor Appeals, 178 Mont. 143 , 582 P.2d 1236 (1978), also recognized that it was necessary to consider all the “facts and circumstances of each case” in determining whether the employer’s “business operations are substantially normal.” Id. at 1243, 1244. It concluded that given the nature of the business of the particular employer involved in that case, production was the “first and major measure” to be considered — but certainly not the only measure. Id. Meadow-Gold Dairies— Hawaii, Ltd. v. Wiig, 50 Haw. 225 , 437 P.2d 317 (1968) similarly treated production as a particularly important factor in the affected employer’s business, but also considered such activities as retail and wholesale deliveries, the curtailment of office and maintenance operations, and changes in the number of employees working during the strike. Id. 437 P.2d at 318, 319 . Similar reasoning was applied in Monsanto Chemical Co. v. Thornbrough, 229 Ark. 362 , 314 S.W.2d 493 (1958) and Cumberland and Allegheny Gas Co. v. Hatcher, 147 W.Va. 630 , 130 S.E.2d 115 (1963), overruled in part in Lee-Norse Co. v. Rutledge, 291 S.E.2d 477 (W.Va.1982). The court in Cumberland and Allegheny Gas Co. discussed the applicable standard in detail:

It is conceivable that in some situations a strike or lockout affecting relatively few employees would produce a stoppage of work if such men were employed in the performance of duties of such vital nature that their unemployment would result in a substantial curtailment of the normal overall activities'or operations of the employer. On the other hand, in other situations the unemployment of a proportionately greater number of employees might have no substantial effect on the normal activities of the employer. In some situations, a substantial curtailment of work in a single category or department of the employer’s operations might be of such a vital nature as to result in a substantial curtailment of the employer’s overall activities if all categories or departments were of an interdependent nature; while, conceivably, in another and different situation, a complete cessation of work in a single category or department of some incidental or minor nature might produce no appreciable curtailment of the overall operations of the employer. 130 S.E.2d at 121 .

This method of analysis is entirely in accord with the statutory standard set forth in § 288.040.5(2) and applied by the courts of this state in Tri-State Motor Co., supra, 509 S.W.2d 217 . 1 I believe that the Commission endorsed and applied the reasoning of the four eases it cited in support of its decision. *659 I am unable to find in that decision the “error of law” discerned by the majority. 2

Apparently the majority believes that the payment of unemployment compensation to these claimants would not be a good use of tax dollars. Our decision cannot be based on such factors. Section 288.040.5 expresses our legislature’s judgment that the principle of state neutrality in labor disputes will not be disturbed if benefits are available only to persons unemployed “due to a stoppage of work which exists because of a labor dispute.” “Whether or not the Act should compensate employees in this position is properly a choice for the legislature.” Continental Oil Co. v. Board of Labor Appeals, supra, 178 Mont. 143 , 582 P.2d 1236, 1243 . We can best maintain governmental neutrality by applying the value-neutral “stoppage of work” test without considering extraneous factors. Missouri courts have commented on the “essential injustice of forcing an employer to assist in the financing of employees with whom the employer is engaged in a labor dispute, by requiring the payment of unemployment compensation benefits during a work stoppage.” O’Dell v. Division of Employment Security, 376 S.W.2d 137, 142 (Mo.1964). (emphasis ours). However, by the plain terms of the statute, this rationale cannot apply if there is no work stoppage. Commentators have recognized that the economic realities of a strike are significantly changed when the employer is able to continue substantially normal operations. Sha-dur, “Unemployment Benefits and the ‘Labor Dispute’ Disqualification,” 17 U.Chi.L. Rev., 294, 298, 309. Apparently our legislature concluded that in such situations the financial impact on the employer would be less significant than the community interest in providing for the economic security of unemployed workers.

I would affirm the decision of the Commission on the “stoppage of work” issue and go on to consider the issue of whether the claimants were “available for work” within the meaning of § 288.040.1(2). The Commission did not address this issue and there is absolutely no evidence in the record showing whether or not any of the claimants intended to return to his position after the strike; whether any spent sufficient time in picketing or negotiations so as to preclude availability for other work; or whether any claimants were engaged in an active and sincere search for new work. I would hold that the circuit court acted properly in remanding this issue to the Commission for decision after an evidentia-ry hearing. Chemtech Industries v. Labor and Industrial Relations Commission, 617 S.W.2d 121, 125 (Mo.App.1981); Trans World Airlines v. Labor & Industrial Relations Commission, 627 S.W.2d 335, 339 (Mo.App.1982); John Epple Construction Co. v. Labor and Industrial Relations Commission, 647 S.W.2d 926 (Mo.App.1983).

. The majority apparently believes that the definition enunciated in § 288.040.5(2) is somehow different from the “substantial curtailment of overall operations” test employed by the vast majority of other jurisdictions. To the contrary see the comment of Professor Lewis at 45 U.Det.J.Urb.L. 319, 327, footnote 30, to the effect that the Missouri definition “incorporates” the accepted judicial standard, “spelling it out with some precision.” Accord, see Tri-State Motor Co., 509 S.W.2d 217 at 225 .

. The facts in Aaron v. Review Board of Indiana Employment Security Division, 440 N.E.2d 1 (Ind.App.1982), are indeed “strikingly similar” to the present case (as are the facts in Cumberland and Allegheny Gas, reaching an opposite result from Aaron), but the critical distinguishing factor is the manner in which the appellate court applied its standard of review. In Aaron , the trier of fact found that there was a stoppage of work; the appellate court affirmed, as it was bound to do because the “findings and conclusions were supported by the ... evidence,” 440 N.E.2d at 2 , and made in accordance with Indiana law. It may well be that Aaron expresses a “better view” of the facts, but the standard of review imposed upon this court by § 288.210, RSMo and Mo. Const. Article V, § 18, does not permit us to overturn an administrative decision in order to obtain a “better” result when that decision is factual and is supported by substantial evidence.