From the Circuit Court of St. Louis County; Civil Appeal; Judge Philip J. Sweeney; Reversed and Remanded
Motion for Rehearing Overruled, Transfer Denied September 15, 1983. Application Denied October 18, 1983.
Before Pudlowski, P.j., Snyder, Kelly, JJ.
The opinion of the court was delivered by: Snyder
This court is called upon to determine whether certain striking employees of the Laclede Gas Company (Laclede) were entitled to receive unemployment benefits during their strike. *fn1
The striking employees were allowed benefits by the Labor and Industrial Relations Commission (Commission). The Commission's decision was affirmed in part and reversed and remanded in part by the St. Louis County Circuit Court and both parties have appealed. The judgment is reversed and remanded.
The decision depends on the resolution of two issues. First: were the strikers unemployed "due to a stoppage of work" which existed because of the labor dispute at Laclede? If a work stoppage existed, the claimants would be ineligible for benefits. See Section 288.040.5 RSMo. 1978. Second: were the claimants "available for work" as required by § 288.040.1(2) RSMo. 1978? If the claimants were not available for work, they would also be ineligible for benefits.
The striking employees ("claimants") are members of the Oil, Chemical and Atomic Workers International Union (AFL-CIO) Local 5-6 (service workers) and Local 5-194 (clerical workers). A strike was called by the union against Laclede on September 12, 1979; it continued until February 11, 1980 when a new contract was ratified and the claimants returned to work.
During the strike, Laclede continued to supply natural gas to its customers. This was possible partly because Laclede's gas distribution system is largely automated, and partly because 330 of Laclede's 442 non-striking employees were reassigned to do the work of 1,549 strikers in 22 different departments.
The activities of, and services supplied by, the various departments were curtailed anywhere from 10 to 100 percent at the beginning of the strike and 10 to 93 percent at the end of the strike, for an average of 75.4 percent at the beginning of the strike and 69.6 percent at the end.
Planning and budgeting activities were curtailed. Most construction and routine maintenance activities were postponed and only emergency repairs were performed. Customers were directed to call independent heating contractors for most installation and repair services. The company closed its appliance and home economics departments. Meters were not read except at customer request. Instead, Laclede prepared estimated bills. The billing and customer accounting functions continued at near-normal levels.
One hundred ten of the striking employees filed claims for unemployment benefits during the strike. Laclede took exception to these claims and filed letters of protest with the Division of Employment Security under the provisions of § 288.070.1 RSMo. 1978. The claims were denied by the deputy examiner on the grounds that the claimants were ineligible for benefits under § 288.040.5 RSMo. 1978. *fn2
The claimants appealed and their claims were consolidated before an appeals tribunal as provided in § 288.190.2 RSMo. 1978. The parties stipulated that the claimants unemployment was due to a labor dispute which existed at the premises where they were last employed, and that all of the claimants either participated in or financed or were directly interested in the dispute.
An evidentiary hearing was held before the appeals tribunal. *fn3 At the outset of the hearing, counsel for the employer raised the issue of availability. This issue had not been addressed in the deputy's determination. Laclede suggested that because the claimants continued to be employees of Laclede while on strike, they could not be "available for work" as required by § 288.040.1(2) RSMo. 1978. Laclede suggested further that several claimants had been members of the union's negotiating committee and were unavailable by reason of their union activities. The appeals tribunal ruled that the issue of availability was not before it, and refused to hear any evidence on that issue. The parties proceeded to the issue of whether a "stoppage of work" had occurred at Laclede.
The claimants' evidence focused on the fact that Laclede continued to distribute gas normally and was able to respond to all emergencies during the strike. Some subcontracting was used to assist in essential construction and equipment maintenance. Nonessential construction, appliance service, installations, and gas conversions were not performed; instead, customers were referred to independent heating contractors. Although few meters were read during the strike, Laclede sent customers estimated bills and continued to receive normal revenues from its gas distribution activities. Customer accounts were kept up to date and data processing activities continued at a near-normal level.
Laclede's evidence stressed the widespread changes in operating methods which it had instituted in order to keep the gas distribution system going. Managers were forced to curtail budgeting, financial analysis, and long range planning activities; supervisors did the work of the people they usually supervised. Witnesses for Laclede described the effect of the strike on each of Laclede's 22 operating departments. They estimated that operations of the various departments were curtailed anywhere from 10 to 100 percent at the beginning of the strike and 10 to 93 percent at the end of the strike, for an average curtailment of 75.4 percent at the beginning of the strike and 69.6 percent at the end. These figures were arrived at by "approximation" and were based on various measurements of "normal" activity, for example, the number of meters installed or read, or the number of telephone calls answered, or appliances sold, in past years.
Based on this testimony, the appeals tribunal concluded that a stoppage of work had in fact occurred, so that the claimants were ineligible for benefits. The claimants then filed an application for review by the Labor and Industrial Relations Commission.
The Commission reversed the decision of the appeals tribunal, stating that: "In evaluating the effect of the labor dispute on the employer's operations, courts have emphasized the aspect of production, or the final product or set of products, or the ultimate purpose of the employer's operations." (citations omitted). Evaluating the evidence in light of this standard, the Commission, with one member Dissenting, concluded that no stoppage of work had occurred because Laclede was able to deliver gas to its customers during the strike. The Commission further ruled that the claimants were not rendered unavailable for work simply because they were engaged in a strike.
Laclede appealed the Commission's decision to the circuit court of St. Louis County as provided by § 288.210 RSMo. 1978. Laclede contended, first, that the Commission had improperly construed and applied the statute by looking exclusively at the level of production in determining whether a stoppage of work existed; second, that the Commission's finding that no stoppage of work existed was not supported by substantial evidence; and third, that the Commission had erred in finding the claimants to be available for work, and in failing to remand the matter to the appeals tribunal for an evidentiary hearing on the issue of availability.
The circuit court affirmed the Commission's decision on the issue of work stoppage, finding it to be supported by substantial evidence. The court reversed and remanded on the issue of availability of work, holding that the Commission had erred in ruling on this question before hearing any evidence on the matter.
Laclede filed its notice of appeal to this court. It contends that the circuit court erred in affirming the Commission's finding on the "stoppage of work" issue, because the Commission misread the statutory definition of a "stoppage of work" and further because its decision was not supported by substantial evidence. In addition, Laclede asserts that the circuit court erred in remanding the availability issue to the Commission. Laclede argues that the claimants were not available for other work because they clearly intended to continue their employment with Laclede during and after the strike; therefore, Laclede says, the Commission's decision on availability should have been reversed outright.
The claimants cross-appealed, maintaining that the circuit court should have affirmed the Commission's decision on both the stoppage of work and availability issues. *fn4
In the proceedings before the Commission, the claimants had the burden of proving that they were eligible for benefits. Producers Produce Co. v. Industrial Commission, 291 S.W.2d 166, 173[2,3] (Mo. banc 1956). The claimants were eligible for benefits only if the Commission found that the requirements of the statute had been met. Id.
On these appeals from the judgment of the circuit court, this court reviews the decision of the Commission, and not that of the circuit court. Division of Employment Security v. Labor and Industrial Relations Commission, 625 S.W.2d 882, 884 (Mo. App. 1981).
The first issue is whether the Commission's decision presents to this court a question of fact or a question of law. Determinations by the Commission of questions of law are not binding on a reviewing court; appellate review of factual determinations by the Commission is limited to ascertaining whether, on the record as a whole, the decision is supported by competent and substantial evidence. See Division of Employment Security v. Labor and Industrial Relations Commission, 617 S.W.2d 620, 621-622 (Mo. App. 1981). Because the facts are undisputed, the question this court must decide is not whether the Commission's decision is supported by competent and substantial evidence, but whether the Commission properly applied the law to the facts before them.
No one questions the fact that 1,549 of Laclede's employees went out on strike, leaving 442 non-striking employees. No one questions the fact that the activities of Laclede's various departments were curtailed an average of 75.4 percent at the beginning of the strike and 69.6 percent at the end. And no one questions the fact that Laclede continued to supply natural gas to its customers during the strike. These are the facts as found by the Commission and the Commission's decision indicated no dispute concerning any fact matter.
Whether a question of fact or a question of law is presented hinges in part upon the reasoning followed by the Commission in reaching its decision. The Commission held in part: "The Commission finds here that no work stoppage existed because the evidence shows that the company curtailed most management activities while providing its product *fn5 to its customers as usual." Thus, the Commission found as a matter of law that if production is maintained, there is no stoppage of work even though most management activities were curtailed.
The Commission relied solely on the factor of production. And yet, in its decision, before it concluded there was no stoppage of work, the Commission said: "If the strike did not have a substantial impact upon the ability of the employer in this case to serve its customers by providing normal delivery of its product, then the State will not lend strength to the position of the strikers by allowing unemployment compensation." The statement is ...