Gilmore Construction Co. v. Miller
327 N.W.2d 628
Neb.
1982
Check Treatment

*1 the murder of his wife. His offers of excuse to the very impressive crimes are not under the circum- Kidnapping attempted stances. murder Legislature Class II felonies are considered among the most serious crimes one can commit. imposed The sentences were at the minimum end of spectrum. say that, We are unable to under the case, facts of this the trial court abused its discre- assignment tion. The final of error therefore must also be overruled.

Having assignments overruled all of Schmidt’s error, judgment we therefore affirm the and sen- tences of the trial court.

Affirmed. Company, Construction appellant, D. Hanlon, Marvin Miller and John Commissioner appellees. Labor, 327 N.W.2d 628 Filed December 1982. No. 82-214. O’Malley McGrath, North, &

Dean Kratz G. appellant. Kratz, P.C., for appellee Mattson, Hanlon.

Pamela A. *2 C.J., Boslaugh, McCown, Clinton, Krivosha, JJ. White, Hastings, Caporale, Krivosha, C.J. The Company,

appellant, Construction Gilmore judgment appeals Court a of the District for from County, upholding Douglas Nebraska, decision a Appeal part Tribunal, a of the Ne- the Nebraska Department appeal of Labor. The tri- State braska employee, Miller, D. that the Marvin found bunal receiving unemployment disqualified not was by being benefits reason involved in dispute. that the We believe trial court a labor was therefore in its decision and affirm the trial correct court. member of Cement Local is a Masons No. Miller employed by Gilmore and was Construction Company project on a called “Financial Plaza’’ lo- city Omaha, Nebraska. On June cated by carpenters a strike was called Omaha against Omaha, Nebraska, contractors in- union day cluding strike, On the first of the Gilmore. jobsite spoke reported to the to his fore- Miller man. According Miller, he was told that necessary perform equipment had work been Miller therefore removed they got as back work as “soon be called set- go did not The cement masons on strike tled.’’ carpenters, sympathy and, fact, with after they separate expired contract worked their without a settlement of the contract until contract Miller masons was reached. testified cement gain he not mason did stand to as a cement any lose in way carpenters’ the outcome strike or strike because cement the ironworkers’ masons employers. separate Miller contract with had any way partici- not in that he did testified further pate carpenters the iron- in the strike way any strike of workers, finance the he in nor did testimony, carpenters This or the ironworkers. by Miller, given refuted. was Security Employment con Law of Nebraska regarding specific provision for bene claims tains a dispute. Neb. Rev. result of a labor filed as a fits (Reissue 1978) provides that an em Stat. ployee “(d) unemployment benefits shall be denied respect any to which the commis with For week is due to a that his total finds sioner stoppage of a labor dis which exists because of work premises factory, establishment, pute or other at the employed; Provided, he is or was last which at apply if it is shown to the shall not this subdivision (1) he is not of the commissioner satisfaction financing interested in in or work, caused the which the labor *3 (2) belong grade of to a or class he does not immediately which, the com before of workers stoppage, members of the there were mencement stoppage premises employed the oc the at which at financing, participating, any curs, directly or of are whom dispute . .” . . interested points in the case of A. out to us that Carpenter, 322, 328, 166 Neb. Sons Borchman denied we N.W.2d not a member to a member of a union “ ‘ striking “a labor union on the basis that wages, work, dispute hours of that affects the employment, general causes all em of conditions ’ ” directly ployees interested.” concerned to held, Furthermore, as a matter of in we Borchman disqualification “applies to mem rule law, the em to nonunion do not strike and unions who of bers court.) (Syllabus ployees.” jurisdic- authority among split of there is While point, the better- we believe that this on tions contrary reach a conclusion reasoned cases would declared in Borchman and therefore that which we decision, previous cause us to overrule our the the Com thereby urged by about result bringing of Labor. It to us that the ration appears missioner Borchman, pointed as out commis ale sioner, the exemptions contained effectively repeals about re brings just opposite in Annot., See Legislature. intended for sult (1975). A.L.R.3d 380 that work in undisputed stoppage

The evidence because of a labor dispute. the first instance was Therefore, in order to become “requali- Miller fied,” that he was not he must show in participating directly or interested in financing labor dis- the. which caused work and that he pute to a or class of belong grade does not workers which, before immediately commencement employed there were at the stoppage, occurs, at the stoppage any which of whom premises in, financing, participating the dispute. in evidence, as established presented, without participating that Miller was or fi

dispute and did not nancing labor belong which, or class of workers immediately grade the commencement of the stoppage, before there members who were financ disqualification Miller’s could dispute. ing only hold, if about we were we did come Borch man, union, that because Miller was a member of a a contract with the having employer, might strike, from the he indirectly thereby benefit had a interest” The cases dispute. “direct have jurisdictions carefully other which examined *4 contained in language the specific In to the contrary persuasive. found case of Outboard, Mfg. Gordon, 523, Marine & Co. v. 403 Ill. 536-37, 610, (1949), 87 617 the Illinois Supreme N.E.2d Court, identical to the a statute one reviewing unescapable “The conclusion is said: question, the innocent intended to for provide the legislature excluding by specifically of a labor dispute victims compensa- unemployment from the denial of them of section 7 subsection previously quoted tion. The was meant protect except the Illinois Act denied victims from classes such from Those who were to be excluded its terms. by attempted the statute were those who by benefits unemployment which caused their by conduct gain or abetted the actively previous who aided or those lost. A they prox- or not dr gained whether group, the strikers aiding abetting of conduct imity the dispute of result to be gained proximity to be the factors. measuring legis- meant were bar, because did not intend remote lature result, those who were de- of causation claims from the benefits to be employment of their prived under the act.” received Cummins, 329, 7 Ill. 2d

*5 And in Shell Oil Co. 336-37, the Illinois Supreme 131 N.E.2d statute, the identical said: again, reviewing Court next the 12 craft contends appellant “The Council, unions, members of the same Trades by all Company with the negotiating single jointly had all their members working agreement placed by or class’ so a strike one ‘grade same of all. In ineligibility support cause the there Gordon, of, Co. v. 405 Ill. 384 it cites Brown Shoe [91 (1950)], and Local No. Boot and Shoe N.E.2d Co., Brown Shoe 403 Ill. 484 Union v. [87 Workers (1949)]. cases, In these all production N.E.2d maintenance workers the same union local. In both in by represented stances, contract had been although new negoti members, union and its approved this ated in the employed lasting department workers certain thereby, resulting to abide involuntary refused held, of other members. We upon facts, the claimants were of the same these [138] striking bedlasters, and for

grade the and class as reason, denied reasoning, ap- however, will not The same benefits. dealing present ply we are case. Here in the 12 and with dif- 12 different unions one but with with Although agents. bargaining it was custom- ferent negotiate jointly ary with the em- to for these unions agreement resulting ployer em- to have the and yet single document, there was in fact a in a bodied Company existing separate between contract which, to be ef- the 12 individual unions each of particu- required only fective, the ratification by the fact This is shown union concerned. lar though present case, ten unions ratified even only agreement, others were free not to re- two the ject independent steps to take these terms but also recog- The Illinois court enforce their demands.” commonality there some nized that while was be- independence, unions, still there was tween therefore, inappropriate suggest effect, it was directly involved with the each union was other. Daly, 255, 264-65, 77 Wash. 2d In Ancheta 461 (1969), Washington Supreme 531, Court, P.2d 537 “ reviewing rectly statute, a similar said: ‘The words ‘‘di dispute” clearly in the labor are interested application employees in their those di limited dispute rectly in furtherance interested activity [Citation participation ted.] therein.’ omit Although shortcomings there are some in this ‘directly interested,’ we believe that definition no direct interest the claimants was based there both participation by upon the lack claimants recognition penny coupled the minimal with wage in no real sense hour increase was an eco an compared long period benefit when with nomic during which the claimants out work. We that the claimants were within the convinced re provisions of RCW 50.20.090 and are entitled to lief ’ ’ unemployment benefits. finally,

And, Commissioner, in Wicklund v. 217-18, P.2d 2d Wash. “ argument Supreme Washington ‘The Court said: every employee was interested that, inasmuch as is working conditions, improvement rate of his in of employment, pay his related to other matters “directly employee therefore, was each which caused labor interpre this is a strained conclude that We work.” meaning of the lan The clear the statute. tation disqualification to those who are guage to confine *6 dispute creating therein order accept prose To their demands. to enforce every employe render employes of would construction cutor’s strike, business, went on some of whose notwithstanding ineligible benefits, his non- might though participation therein and even he be any opposed and decline to have to the labor “directly part The use of the words inter therein. dispute” clearly appli limits their in the labor ested directly employes to those its cation activity by participation and therein.’ furtherance “ inescapable [T]he is ‘. . . conclusion pur- one, Legislature who has never intended against involuntary unemploy- protection his chased ment, those benefits because of a should be denied way dispute” in no in which he was involved “labor unemployment he, causes of which his and powerless organization agents were to avert. To appears court, otherwise, it to this would conclude purposes and beneficent the true to defeat into that statute a sham and a and convert statute respect employees, mockery to those industrial with designed appellee, it have been whom must unemploy- against of enforced protect the hazards they helpless ment, causes of which so, not then a situation could be If such were avoid. easily whereby per- a few executed conceived accomplish hun- could sons entirely victims, innocent faultless dreds matter, compensation them of thereby deprive ” for.’ bought paid had they benefits which Legislature for the easy been very

It have the result produce which would a statute to draft in Borchman. by and reached us by urged however, must, by the word using believe We “direct,” exempt did not mean to the Legislature a strike called by by affected” “indirectly persons did, hold, that “di- To as Borchman union. another members only includes interested” rectly but also others involved members union who employees not strike and nonunion have do who or the work is to over the strike no control 48-628(d). done, If that is to be effectively repeal § and not by Legislature by be done it should courts. to the extent the holding believe that Borch-

We that both provide is understood man and nonunion employees unions who nonstriking of a benefit reason strike may ultimately called union are disqualified receiving another un- benefits under provi- employment 48-628(d), even are not though they direct- sions in the work stoppage, involved overruled. ly rule is that members The better nonstriking *7 who are not employees partici- and nonunion unions financing directly in or interested in a pating stoppage, a work which caused labor not to a or class of belong grade do workers who who, before the immediately commencement at employed premises were members stoppage, and are occurs at which in the labor financing in dis- disqualified receiving benefits un- pute, 48-628(d). der § both the Nebraska believe Tri- Appeal

We and the District Court were correct in finding bunal had met his burden of proving that Miller he was exceptions within was not dis- § of the labor dispute, reason from re- qualified,

141 compensation, ceiving unemployment there- and we which of the District Court affirm the decision fore Appeal upheld of the Nebraska the determination Tribunal. Affirmed. dissenting. J.,

Caporale, doing respectfully so, I In concede I dissent. majority’s analysis employs logi in this case a “directly defining phrase inter in method cal ested,” 48-628(d) (Re in Rev. Stat. as used Neb. 1978). My difficulty from the fact that arises issue open question one; is not an this court A. Carpenter, 322, 166 89 Sons v. Neb. Borchman (1958), adopted contrary 123 definition N.W.2d equally logical analysis. an jurisdiction years

For almost 25 the law this has nonstriking “directly union members are been stoppage produced at interested” a work their During employment by place of period the another union. this prior Legislature has seen fit to allow our of its statute to stand. Where a statute construction judicially that construction has been construed and presumed amendment, not evoked an will has Legislature acquiesced has the court’s analysis legislative expository intent. The People 348, Hairston, 46 Ill. 2d 263 N.E.2d 840 v. (1970), 972, 1658, cert. denied 402 U.S. 91 S. Ct. 29 (1971); City 2d 136 Santanelli v. Provi L. Ed. (1969); 208, dence, R.I. 250 A.2d 849 105 Nevada Strange, 153, 84 Nev. 437 v. P.2d 873 Comm’n Indus. (1968); 356, Garrett, 163 Hewett v. 274 N.C. S.E.2d (1968); 421, Gutmann, v. 44 Wis. 2d 171 Chart 372 973, 90 S. Ct. cert. denied 397 U.S. N.W.2d (1970); 1089, Rel. Bd. v. 25 L. Ed. 2d 267 Pa. Labor (1968); 146, Assn., 247 A.2d 621 H. 432 Pa. Uniontown Magreta Co., v. Ambassador Steel 380 Mich. (1968). See, also, Club Lincoln N.W.2d Woman’s City Lincoln, 133 N.W.2d 455 178 Neb. (1965); 826, 161 Co., Oil 100 Neb. State v. Standard (1917). change in the ex- is to be If there N.W. *8 upon isting this court to it is not incumbent law City Lincoln, Club v. it. Lincoln Woman’s make supra. of rely employer entitled to on in this case was supra. Borchman, Had the rule announced operating employer announced under the rule been today might of caused the removal well have employment equipment in, site as it tes- from the its customary anticipation tified, refusal of picket to cross the line of an- of one union union. other legal precedent society in a of the values of One certainty governed created al laws is that society accurately of that to a member lows specific consequences safely anticipate con slavishly do not adhere unneces we duct. While sarily precedent sake, the for its own doctrine of public policy, on is entitled to decisis is based stare great weight, be adhered to unless rea and should clearly exist, are erroneous or do not therefor sons good mischievous, more harm than will re or unless City doing v. so. Lincoln Woman’s Club from sult Day supra; Assn. Seventh Lincoln, Nebraska Conf. County Hall, 166 Neb. N.W.2d v. Adventists (1958). generally Indeed, that we are mindful of departure follows sudden disorder which clearly precedent is illustrated established our apply retrospectively the modifica refusal recent tion Langfeld evidentiary Department rule. of an (1982). p. Roads, 328 N.W.2d ante justify judicial nothing in this record There policy disruption the settled of what has been By and one-half decades. of this state for two law Department affirming of Labor the actions of permitted majority below, has an the court and arbitrary usurpation legislative administrative power. and dismiss the below

I the court would reverse employee’s claim.