*1 413 number of women available respect to the except will not be disturbed and its decision number select- county, the of discretion. v. Cucko for service in the for an abuse State 1972). A not vich, (Mo. ed, may 16 banc have chosen 485 the number who S.W.2d for none of review of the-record shows that made no motion to serve. Defendant any preju eight questioned jurors object jury was did not quash panel, dice or bias shown. trial, no motion for and made before or at say speculation be new trial. It would Holliman, 529 Citing State v. S.W.2d com- representative of the not jury was that the tri- (Mo.App.1975),appellant insists munity. duty al had an to conduct court affirmative thorough potential “a examination of the is affirmed. Accordingly, jurors partiality to insure that [did] said it exist.” In that case the trial court All concur. venireman particular was not sure that a cause was unbiased but that questioned for statement
it was bound the venireman’s appeals that he could be fair. The court of transcript reversed and held that where the recognized revealed that the trial court possible problem impartiality some juror, challenged it was not bound PUBLISHING COMPA- The PULITZER juror’s own assessment but was re- NY, Plaintiff-Respondent, quired independent to make an factual de- v. termination. case, LABOR AND INDUSTRIAL RELATIONS transcript In this nothing in the Missouri, Division of part any eight. reveals bias on the COMMISSION al., Employment Security Defendants- et attorney, any Defendant’s not shackled in court, Appellants. way by the trial demonstrated no juror the part bias on and cannot No. 61692. argue now that the trial court abused its Missouri, Supreme Court failing to demonstrate it discretion for. En Banc. See, Morrison, him. State v. 557 S.W.2d (Mo. 1977). Nothing banc in this 445[2] March 1980. case that the trial court failed indicates 11, Rehearing March Denied make independent determination based upon questions jurors, asked of the their
responses thereto and the court’s observa- of their
tion demeanor. Appellant charges impaneling error in jury jury because the selection statute then
governing systematically excluded women panel repre-
and that his was therefore not community. sentative of the jury invalidate a verdict on the To jury improperly impan basis that the was eled, showing there must be a of unconsti arising sys
tutional discrimination out of Robinson, tematic exclusion. State (Mo.1972). Appellant points support charge. no evidence in of his His assertion, is not suffi appeal, first made on nothing cient. The record contains *2 Hammond, Cook, W. St. Cary
James K. Hare, Louis, Morris, M. Jef- V. Kevin Rick Levin, Lewis E. Mal- Morris J. City, ferson Louis, Lange, Clayton, for lott, Gary H. St. defendants-appellants. Louis, plain- Hoemeke,
Robert B. St. tiff-respondent. Ullom, curi- Clayton, for amicus
Jess W. ae.
SEILER, Judge. a decision appeal This from Louis City of St. Circuit Court which In- the Labor and reversed the decision of upholding Commission dustrial Relations non- members of ten eligibility compensa- striking unions to Relations tion. The Labor and Industrial Employment Division belonging Security and individual claimants appealed. to the ten application the defendants’ We sustained in the court opinion transfer after an interest and general because of the appeals We questions presented. importance of the origi- though here on will treat the case V, art. 10. appeal. nal Mo.Const.
I . the referee
The facts as found Rela- Industrial adopted by the Labor and referred to (hereinafter tions Commission re- commission”) are as follows: as “the separately from another and Company one Publishing Team- Pulitzer spondent, The sters. employer”) to as “the (hereinafter referred prints daily newspaper
publishes be- bargaining agreement The collective loca- at three different plants and facilities ex- and the Teamsters tween the also does Louis. tions St. Nego- midnight, August at pired *3 daily the other Louis printing the for St. begun which had new contract for a tiations newspaper is employer’s The newspaper. and the unsuccessful July, were early in independent who are distributed carriers expiration at the a strike Teamsters called of the em- employees and not businessmen pickets Teamsters’ The of the contract. between employer employs ployer. The August midnight on shortly after appeared 2,000 2,100 Between 50 and individuals. the After plants. Louis 21st at all three St. employees are executive and 100 of these employer sus- the began, teamsters’ strike personnel who are and administrative of both publishing the pended operations any union. About 32 of members of daily major Louis the other St. its own and less than 2% of all remaining employees, newspaper. the Internation- employees, are members of anyone on be- attempt by There was no Chauffeurs, Teamsters, al Brotherhood any contact employer to half of the Helpers, and Local No. Warehousemen non-striking un- members of officers or “Teamsters”). (hereinafter to as referred instruct their if would to learn ions at performed The Teamsters duties line of the picket members not to cross loading platforms adjacent to the docks and and Claimants appeared. Teamsters if it loading production plants employer, of the non-striking unions of the other members newspaper and unloading newspapers and lines and picket fact cross the did in “dock- supplements, and were known as employer.' Copies work refused men”. following letter were distributed remaining employees, including of the non- other members claimants and claimants, ten differ- are members of some pick- when crossed striking unions ent and skilled trade or craft highly skilled to attempted and the Teamsters et lines of performed by unions. The services these report for work: pho- employees reporters, include those of action taken “Because of the tographers, photofinishers, photoengravers, Team- Brotherhood of International lithographers, typesetters, printers, press- Warehousemen, sters, Chauffeurs, and stockmen, men, mailers, handlers, paper op- America, impos- has become Helpers erating engineers, operators, switchboard and distribute publish, print sible to accountants, machinists, bookkeepers, elec- Post-Dispatch. tricians, and maintenance men. com- we are consequence “In of this of the claimants herein None no work there is notify you that pelled to Teamsters, union, that, nor did and you perform available for any of the claimants or other members of longer are no you until further notice non-striking perform any unions your for work required report Like- performed by duties the Teamsters. comple- with the has ceased renumeration wise, perform any of none of the Teamsters worked. your last shift tion of performed by the duties the members considered in no sense be “This should unions to which the claimants non-striking your emply- as notice of termination belonged. us, should relationship with but ment period as notice of only by considered non-striking unions had ex- Each of the per- be is no work to during which there agreements at isting bargaining collective formed. on strike. the time the Teamsters went out needed employes “A limited number of non-striking negotiated Each of the notified will be agree- property to maintain the respective bargaining their collective assignments. their individually regarding from employer separately ments with the operations any “When normal can be re- nor was there any indication that again sumed and there once work non-striking unions had authorized you perform you will be notified. negotiate any Teamsters to issues with the
“We want we re- you to know that employer on their behalf. peatedly offered to arbitrate or mediate prior unions in their The ten the issues in dispute dropped with had rejected. union and the offer was We did or withdrawn issues from their contracts everything possible to avert the strike concerning a fifth week of vacation for regret exceedingly this situation seniority. affecting has been forced on us as it does nonetheless, unsolicited, the un- informed many loyal so employes. faithful ions, writing and in orally most instances Louis Post-Dispatch” St. others, successfully union (Local 47) Only one of the ten non-strik- negotiated agreement in relation to a *4 ing unions its members notified that vacation, fifth week of each of the other would picket sanction the Teamsters’ lines. unions would receive the same benefits. This sanction was in accord with the union’s One of the issues that remained unresolved contract with the employer and was intend- the the at the time of Teamsters’ strike was prevent ed to the employer disciplin- from Teamsters’ demand for a fifth week of va- non-striking members of the union ing who years’ cation for with ten seniori- might picket choose to refuse to cross the ty. dropped during The issue was subse- above, lines of the union. As noted quent negotiations and the final settlement sanction, despite this members of this non- did grant not a fifth week of vacation to striking union did in fact cross the Team- any Representatives of the of Teamsters. sters’ picket president lines. The union tes- the various unions to which the claimants tified that of members the union were respective un- testified that their urged in fact picket cross the lines and ions agreed employer’s had not offer perform Later, any and all available work. concerning the issue of a week of .fifth employer when the learned members vacation. of crossing picket were lines 47 work, found, hearing The which reporting and referee a for did after days, not reconsider its decision to shut down its lasted five the claimants were business. stoppage of work unemployed due to a they premises which existed at the where Negotiations between the Teamsters and employed. stoppage were last The of work continued and settlement of was caused a labor between the 3, the strike was reached on October 1973. were Team- employer and the dockmen who During the newspapers strike no were The of the “same sters. claimants not printed. non-striking Some members of the or, members of the class” working unions were able to continue for dispute. union in the labor The engaged the employer payroll in such areas as and claimants and members of the unions to maintenance during strike. None of belonged did not have a “direct which participated the claimants or their unions in dispute, interest” in the labor nor did fi- picketing any Teamsters’ nor made participate dispute. in or finance the nancial contribution to the Teamsters dur- were, therefore, ineligible not for ing the of the claimants strike. None claimants or 288.040, provisions of participated their unions in benefits under the § The commission affirmed the employer, between Teamsters and the RSMo 1978.1 288.040.5, 1978, provides work which exists because of a labor 1. Section RSMo part: factory, premis establishment or other ; employed es in which he is or was last (1) ineligible waiting A claimant shall be for further, provided this subsection shall week credit or benefits for week for apply if it is to the satisfaction not shown deputy par- which the finds that his total or deputy tial is due to a
417 providing compensa findings appeals payment decision and referee. court, however, their unem respect The circuit reversed the tion to individuals 288.020.2, order 1978. grounds ployment.” commission’s on the Section to be narrow unsupported by provisions order was the evidence and are “Disqualifying not ly in accordance with the law. O’Dell v. Division Em construed.” Security, 376 ployment S.W.2d (Mo.1964).
II The order commission is Ill subject to review the courts to deter findings We find that the commission’s mine it is law” whether “authorized and by competent supported and decision were “supported by competent whether it is and substantial evidence and not upon substantial evidence the whole rec overwhelming weight clearly against V, ord”. art. In reviewing Mo.Const. the evidence. decision, an administrative circuit inquiry court’s limited. Board of Educa A tion, Shank, Mt. Vernon Schools (Mo. 1976). banc The court found commission may not substitute its un- other members may evidence not set aside an “directly adminis ions were interested” in the trative decision clearly unless the decision is dispute. not claimants “[WJhether *5 contrary weight to the overwhelming dispute of the were interested in labor directly a evidence. at 782. Id. “The court must of work stoppages which caused are light consider the evidence in questions findings most fa fact requiring of that vorable to the findings and decision of only could be obtained from evidence commission, and all reasonable be only inferences and could reached natural rea- therefrom, and must all disregard opposing soning.” Poggemoeller v. Industrial Com- and Neeley mission, unfavorable evidence.” (Mo.App.1963). In 371 499 dustrial 379 S.W.2d The each commission found that union “If (Mo.App.1964). evidence before an ad others, was of the independent having sepa- body ministrative would warrant either of agreements separate rate with employment two opposed findings, reviewing court is dates, separate effective termination and determination, bound the administrative wages, hours and other conditions of em- and it is irrelevant is supportive there ployment. non-striking Each of the unions evidence for the contrary finding.” Board binding under collective bar- working Education, of Schools, Mt. supra, Vernon gaining agreements employer. S.W.2d at non-striking partici- None of unions The legislature Employment pated enacted the negotiations in the Teamsters’ Security in the expressed Law 1951 with the employer, they nor did authorize the purpose setting of aside negotiate re Teamsters on their behalf. All serves persons “to be used for the of of non-striking employees benefit who were through unemployed no fault of their working own.” the strike was called contin- when 288.020.1, RSMo 1978. “This law through respective shall be ued to their shifts. work liberally to accomplish purpose construed its The and other claimants members promote employment security . non-striking reported unions work the (a) participating participating directly financing financing not He is or in or or inter- directly dispute dispute; or interested in labor ested in the work, (2) stoppage “Stoppage
which caused the and of work” as used in this sub- (b) belong He a does or class section means a substantial diminution of the which, immediately activities, preceding production workers at the estab- or services stoppage, lishment, the commencement factory there plant, premises or employed premises were members employing at at unit. occurs, any which the of whom are respect wages, next hours day working and were denied work and condi- employer they after had crossed the Team- tions. The contracts did not have uniform picket sters’ line. None of the members of execution or termination dates. At no time non-striking participated the ten non-striking did the unions or their mem- picketing nor financially supported the participate bers between Teamsters’ strike efforts. Teamsters, and the or attend any negotiating sessions. There also contends its promise following testimony was the from some of to give all with ten years seniori- ty representatives: a fifth union gave week of vacation' if it such Teamsters, any benefits to the handful of effec- had no recollection of assur- tively created a “direct interest” in the la- ances a in the event union bor non-striking employees for the a of vacation obtained fifth week that the case, under the Poggemoeller supra. them; In same would be offered to Poggemoeller, upheld the court the commis- reports recalled no from the Teamsters that sion’s of fact members of subject being negotiated; was and that one union “directly interested” in a if there were to be additional vacation because they gain stood to or time, negotiat- each union would do its own lose the outcome of the strike of another ing anything on it and null else would be Poggemoeller union. The facts in are void. starkly different from those in the case at disqualified 288.040.5(l)(a), To be under § Poggemoeller, bar. the claimants were “directly the claimant must be interested” members of one of two unions whose mem- dispute causing stop- in the labor the work bers worked in various automobile dealer- page. The can be used in “directly” adverb ships and body shops. variety ways. It can have reference to parts worked as personnel service time, “directly as after this he was re- the members of the other union worked as moved”; straightforwardness, or as “he repair mechanics and workers. All of the direction, opinion directly”; asked her various employers belonged to an associa- offshore”, blowing directly “wind but in the tion that was negoti- authorized to conduct *6 statute before us it is used in its causative ations with both Although unions. the em- happening anything sense of without inter- ployment agreements by were executed vening, indirectly. In that opposed to employer each separately, they signed sense the claimants here were interested and executed both jointly. Many unions only directly, not in the indirectly, vacation provisions the employment these con- issue. There was evidence from which the applied tracts equally employees to all re- could find that discussion of the commission gardless they belonged of which union to. employer vacation issue between the All contracts in past negotiat- the had been (and get the it beyond Teamsters did not jointly by ed the two unions and contained stage) at the most could affect claim- n identicalexecution and termination dates. only ants at some undermined future time Both unions jointly served notice on the only and then if additional vacation bene- employers negotiate to wished part fits as a of different col- materialized agreement. new At the time when the bargaining agreements. lective The com- strike, mechanics union went out on neither mission could have considered that di- working union was under contract. The rect benefit to claimants from the vacation negotiate association to jointly continued speculative issue was and the commission throughout with both the unions strike and was within it when it the evidence before represented negotia- both unions were at all found that the claimants were not interest- tions. ed. bar, In the employer negotiat- case at the The the
ed with each union commission found that vacation separately. Each of the (the only contracts of the issue conceivable item in the dis- varied materially pute benefit, any from that of the dockmen’s em- possibly with that could striking expected pressure striking Teamsters) then be other than the ployees employ- The up its demands. dispute give issue in between union to principal was not a purpose promise could be made for employer when the er’s the Teamsters and it, as the major no intention to be bound began. strike The issue of the strike with precedent employer controls the condition employer’s attempted re- concerned promise. obligation perform some of the Teamsters’ manu- to his placement of that such was necessary It to declare through partial al labor automation of the is point intention here. loading employer’s docks. There was no evidence that Moreover, em- done. seriously was an item it could be vacation issue a conditional use such ployer either could also negotiated considered or escape its statu- promise It is not un- in this manner employer.2 Teamsters or the its em- toward tory responsibility usual for each side to financial in labor through work no who are out of “laundry ployees commence with a list” of de- would mands, promise merely chips of which are fault of their own. many ineligible for employees the innocent expended bargaining process. be in the make thereby relieve the and would the benefits There is another consideration. If an un- contribution for of the financial employer employ- promise by solicited conditional otherwise the benefits the statute would give er to all whatever benefit potential these subversions require. Given regard union obtained in to a statutory purpose, together employer issue chosen by the single of vacation was fact that no fifth week per found se to create a “direct interest” in and that the Teamsters actually granted legislative for all employees, other place taken what would have plan embodied in the statute would be al- could speculative, unions is the commission above, tered. As noted one of the statute’s find, expertise its upon based reasonably purposes protect employees basic is to out negotia- in the area of labor experience through of work no fault of their own. If tions, prom- that the unsolicited conditional an employer’s prom- unsolicited conditional req- not create the ise did ise, employer’s no matter how remote the so as uisite “direct interest” in obligation part on it or how small a non-striking employees ineligi- to make the played negotiations, were to make all benefits under the ble for non-striking employees ineligible protec- statutory plan. statute, tion under the then the non-strik- ing employees, out work no fault through did so find. It is The commission own, of their hostages would become the circuit court viewed apparent disputes. supporting would be able a con capable An evidence as give failed to pressure trary finding, to exert extreme on em- and the court *7 administra requisite deference to the ployees by making damag- their strike most above, noted ing non-striking employees. to the The tive determination. As light evidence in the non-striking employees, hit harder than the court must view the findings and decision parties real to the because are most favorable to the disregard for benefits and must all ineligible both of the commission evidence, benefits, Neeley, and their own unions’ strike could unfavorable opposing and commission, striking having adopted appeals em- between the union and the 2. The sue ployer decision, striking and if the had been referee’s was convinced that the vaca- union principal negotiation issue nor week tion issue was neither a which would have one successful in its on the fifth directly benefiting claim- benefited the of their of vacation issue some non-striking ants or other members of the un- the claim- members and thereafter some of successful ions even the Teamsters had been in or members of unions to which ants negotiating on the the issue. Its interest amounted to a direct issue follows: by members of or labor the claimants they belonged under the unions to which “The Referee is not convinced that the issue Employ- provisions the Missouri above involving a fifth week of vacation for certain Security Law.” seniority principal ment was a is- loading unloading and news- skilled labor as repeat, at 204. To if the supra, 379 S.W.2d employer’s either of two find- docks papers evidence would warrant into trucks on the commission’s ings, the court is bound The commission loading platforms. determination, and it is irrelevant interchange of duties between the found no evidence for the con- supportive there is dockmen and the mem- unskilled Teamsters Education, trary finding. Board of Mt. non-striking skilled and the ten bers of Schools, supra, Vernon at 782.3 craft unions. Be- highly skilled trade and finding that the non- The commission’s skills, the this difference in commis- yond directly inter- striking employees were non-striking ten sion found that each of the dispute was ested in the Teamsters’ sepa- contract and an individual had competent ev- supported by substantial concerning wages, rate contractual terms against the over- clearly idence and was not employ- hours of and conditions work of the evidence. whelming weight striking ment, from those of the differing Teamsters. B nearly contends employer The The commission also found 2,000 employees from the ten non-striking of the ten and other members unions were of the skilled trade and craft unions were not of the same striking class as the 32 same or dockmen, Teamsters grade or class as the O’Dell, dockmen, supra. citing Teamster’s 288.040.5(l)(b), 1978.4 The under is employer’s reliance on O’Dell mis- claimants were commission found and facts placed legal because the issues highly skilled and skilled members of ten from those markedly different that case are unions, perform- different trade and craft dealt instant case. O’Dell presented those of ing ranging various services from where an automobile question, to switchboard reporters photographers in the same has two divisions manufacturer bookkeepers. The duties operators and lines, assembly merging dockmen, building with Teamsters constituted strike in one division hand, entirely of such un- whether a consisted other promise. employer’s opposing assistant director disregard and unfa- 3. Rather than all evidence, support- the offer as an the dissent marshals relations referred to vorable ing for labor contrary finding. “option”. Even as- evidence for a that the offer One union stated contrary suming finding supportive only for a evidence it as valid was communicated to found, may seniority, the evidence would years’ be since while others those with determination warrant either the commission’s for those the offer to be valid understood determination, the court dissent’s years’ seniority. Other unions de- with 10 bound the commission’s determination. or a non-strik- nied that either upholding Further the commission’s determi- ing would be bound the Teamsters’ union following in the record: nation are the facts bargaining agreement. collective (1) prior negotiations of the non- with one unions, thát un- stated Poggemoeller 4. In v. Industrial give employ- der no circumstances would it ees a fifth week of vacation. (Mo.App.1963), the 371 S.W.2d 498-500 employee appeals whether an court of participates dispute, held (2) evidence that the vaca- There was some in a labor interest or has a direct only one of more than 40 tion issue was oc- has and whether a work parties negoti- issues mentioned ations. dispute, were of a labor curred as a result Al- questions though the commission. of fact for (3) progress reports to the other un- In its judicially determined it has never been ions, vacation did not list the the Teamsters state, logically re- that the follows in this Rather, negotiation. *8 the that the in issue as an issue statutory proviso, maining in the condition unions Teamsters informed the other grade employee or in the “same is whether manning “the at the main issues concerned question employees, striking ais as the class” of fact for the “loading Dunlap plant” and the inside When faced commission. trucks”. Supreme held question, Court the Colorado interpre- (4) in the There were contradictions employee “same in the that whether an parties gave terms of the tations the employer’s question grade fact. Orr or class” is a regard the vacation offer in 173,534 P.2d 188 Colo. Industrial 785, hence, and, ques- issue there were serious (1975). any, enforceability, tions as to the of the skilled highly skilled and members of factory where are in the stoppage of work unions, unlike division were em- and craft employees of the other trade manu- Teamsters, unskilled performed was a construc- who At issue in O’Dell ployed. into newspapers “stoppage loading of work” subsection finished tion of al labor in Law, Security employer’s now of the Employment dock area of the trucks 288.040.5(2), Furthermore, and O’Dell did and RSMo the claimants plants. § construction of “same not address the members of other in 288.040.- grade language or class” strike. Teamsters’ honor refused to 5(l)(b), the record for in ample support There was the non- finding, the commission’s O’Dell, two divisions employees In of the not of the same were striking employees union, which was belonged to the same local striking Teamsters as the grade or class bargaining agent gen- for all the exclusive dockmen. pay and increases. When wage eral rates went on employees in the one division strike, division employees in the other C divi- Employees of both honored strike. conclusion, found that the commission production sions worked side side on the of the other members the claimants and assembly merged. line where the two lines participating not were non-striking unions closely The two divisions were coordinated in the in, directly interested financing, or work, shifts, as to number of reduction were not members dispute labor and side, inven- forces on either close-downs for partici- of the workers grade same or class tory, shortages. vacations or material interested financing directly or pating in or building, place, court concluded “that stoppage dispute which caused in the premises location where the and Chevrolet therefore, commission, deter- work. The employees Body Division and the Fisher ineligi- were not the claimants mined employees working Division were was a sin- The com- benefits. ble for gle factory, automobile that the factory and were based findings and decision mission’s employed where claimants were was the and competent evidence on and substantial same factory which the work overwhelming clearly against the were not arising of a out occurred.” court The circuit weight of the evidence. at 145. The court then sum- its improperly substituted marily upheld the commission’s determina- We, therefore, re- commission. tion that the claimants failed to show that re- circuit court and verse the decision of they participate dispute, did not in the labor case for a reinstatement mand the strike, they financing were not neces- further commission’s order in the directly interested with this not inconsistent sary proceedings the same were not of decision. grade or class as the strikers. As to the remanded. Reversed and class,” grade issue the court of “same merely upheld the commission’s determina- J., BARDGETT, and MORGAN and belonging
tion that the same C. JJ., union, HIGGINS, concur. doing essentially type the same assembly work side side on the same J., dis- WELLIVER, separate dissents line, the same or class. were of opinion filed. senting O’Dell, the facts in Unlike RENDLEN, JJ., dis- at was in the case bar none of the claimants DONNELLY dissenting separate opin- Teamsters dock- sent and concur in same union as work, WELLIVER, men, J. performed none the same none ion of side with the Teamsters nor worked side dissenting. WELLIVER, Judge, bargaining represented the same case dissent. agent. respectfully The claimants in the instant I *9 422 er’s account áffeets the tax principal opinion would reverse the rate it must 288.123,
judgment City pay, of the Circuit Court of the under 288.113 to RSMo §§ respondent, of St. Louis that the account of 1978. (hereinafter, Publishing Company Pulitzer The Commission found that the claimants “Pulitzer”) Employ- with the Division of unemployed stoppage due to a of work Security charged ment should not be under they which where premises existed at the 288.070.7, 1978, payments RSMo with the § which was caused employed, were last by made the Labor and Industrial Relations Pulitzer and by a labor between (hereinafter, the “Commis- finding sup- Local 610. This Teamsters sion”) nonstriking employees of Pulitzer ported evidence. It is of no by substantial during suspension publishing opera- of unemployment of consequence that plants growing tions at Pulitzer’s out of the directly precipitated by claimants was August Teamsters’ dockmen’s strike of suspending publication action of Pulitzer question October of 1973. The whether Pu- newspaper. underlying of cause of its charged litzer’s account should be with the dispute. the work was the labor payments appellant made Commis- Commission, 490 Adams Industrial during stoppage depends sion the work on 77, (Mo.1973); Poggemoeller S.W.2d 80-81 ineligible whether the claimants were Missouri, of v. Industrial Commission 288.040.5, benefits under 1978. RSMo § (Mo.App.1963). nonstriking The trial court found that nonstrik- The Commission also found ineligible individual claimants were for ben- ing highly to “skilled or efits as a matter of law because the same skilled unions” and “were not of “directly interested” in the outcome of the as the members of the grade and class negotiations. opinion by Teamsters’ In an dispute.” Con- engaged union J., Stockard, 3, 1979, Sp. July
A. filed a found that sequently, Commission panel of the Eastern Appeals, Court Dis- ineligible were not for benefits reason of trict, unanimously judg- would affirm the 288.040.5(l)(b), 1978. RSMo § ment my opinion, of the circuit court. judgment was cor- the circuit court negotiation be- One of the issues under opinion rect and should be affirmed. The tween Pulitzer and Teamsters much,of which language follows uses years’ se- employees was whether with ten analysis opinion found in the week of niority given would be a fifth court of appeals, quota- without benefit of agreed give all of vacation. Pulitzer had tion marks. years seniority its with ten a employees gave fifth week vacation if it such bene- It should be noted at the outset that the fits to the Teamsters. Pulitzer individual claimant-employees who received gave the non- agreement contends that this unemployment compensation because of the interest” in the striking employees a “direct suspension production Pulitzer will labqr 288.040.5(l)(a), dispute under RSMo § keep the compensation paid regard- to them adopted 1978. The Commission less of appeal. the outcome of this 288.- § Pulitzer “had either oral- of its referee that 070.6, Consequently, although RSMo agreed means writing or in both ly “claimant-employees” group as a have which claim- with ones to these unions appealed [the from the the circuit any other union did belonged] that ants court, they interest in the outcome have no agreement in rela- successfully negotiate is, however, litigation. jus- of this There issue that tion to the fifth week vacation controversy ticiable between the Commis- a like each of the unions would receive sion and Pulitzer in the event Pu- because members.” the issue for their agreement litzer on prevails appeal,' its account made the addi- The Commission’s referee Employment Security the Division of however, “not finding, that he was charged payments will not be tional claimants, 288.070.7, involving a fifth made to the issue convinced that charges against and the amount of Pulitz- week of vacation for certain *10 Kanne, Director of Labor Rela- Marvin seniority principal with was a issue between Globe-Democrat,iden- union and the employer,” tions of the Louis St. he was not convinced that Pulitzer’s 13, that Exhibit and testified Employer’s tified agreements oral and written to extend to 27, 1973, April letter dated that it was a nonstriking each of the members of the agree- as a result of an that it was written unions the fifth week of vacation for em- of vacation the fifth week regarding ment ployees years’ seniority with ten “amounted negotiations with during reached St. issue dispute by to a direct interest in the labor Union, 8, prior Local Typographical Louis of the unions to claimants or members Nelke, Raymond T. its current contract. which they belonged.” Union, Typographical Louis President St. The trial court ruled that the Commis- 8, requested Local that he that the testified sion’s conclusion that claimants had no “di- letter be written. rect interest” in the labor Employer’s Exhibit Mr. Kanne identified caused the of work was “inconsist- 15, 1,1972, September as letter dated ent with the facts and at variance with the written testified that the letter was judicial construction It phrase.” also agreement regarding the fifth result of an ruled that the Commission’s conclusion during nego- week issue reached of vacation “that claimants were not of the same class tiations International Association of with as the dockmen is in conflict with Machinists, Roy 9. Mr. D. Haw- District judicial interpretation of that term.” I kins, the Inter- representative a business agree with the trial court on both issues. Machinists and national Association of The Commission found as a fact 9, (IAM), Workers, District testi- Aerospace agreement there was an with all the other represented agree- the letter an fied that unions to which that if meetings representa- ment reached the fifth granted week of vacation was testified tives of Pulitzer. Mr. Hawkins union, granted one it would be to all. It is 1, September he letter received the on true that there was conflicting evidence as 1972, agreement pre- and that reflects issue, fact but the viously rep- reached between IAM and the Commissionis amply supported by substan- bargaining ses- evidence, resentatives Pulitzer tial and therefore it is binding on the letter was written at the reviewing 288.210, court. sions and that RSMo 1978. The Commission also found that if the ne- request of Mr. Hawkins.
gotiation for the fifth week of vacation Employer’s Ex- Mr. Kanne testified successful, time had been the results would 14, 6, 1972, hibit was a letter dated October have benefitted “some of the claimants or and that it was written as the result of an members of the unions to which be- agreement concerning the fifth week of longed.” during negotiations vacation reached issue Steinke, Robert A. Executive Secretary with and Electro- Paperhandlers St. Louis Guild, Newspaper St. Louis Union, typer’s Local 16. The President of identified Employer’s Exhibit and testi- Aubuchon, union, William testified fied that it was marked “Memorandum of Pulitz- letter was an offer made Understanding,” 5,1972, April dated that it er, position that it confirmed Pulitzer’s but was a pertained document that to vacation position, did not confirm the union’s schedules, and particularly, to a fifth week he that Aubuchon could not recall whether vacation, signed and that it was on be- requested had that that letter be written. Guild, half of the Newspaper St. Louis agreements such Mr. Kanne testified that Wippold, president Mr. then of the St. Louis Employer’s as those reflected in Exhibits Newspaper agreement provid- Guild. That through 16 made with each of the ed that if union obtained a fifth week vacation, regarding other unions a fifth week of va- provid- same “shall also be ed” to in those cases who are members of the cation. He testified that Guild. the unions requested by where letters were written, they were and that in. had the other no direct interest *11 cases no letter was sent. Mr. Kanne’s testi- finding. upon seems to be premised mony regarding the existence of written permissible Whether this is in view of the agreements on the fifth week of vacation findings by of fact is a Commission issue was not contradicted. With respect to question by of law reviewable this Court. understandings unwritten with the other I am not convinced that the evidence regarding the fifth week of vacation supports the determination that the vaca- issue, the evidence was as follows. issue; tion principal demand was not a in Witt, Charles R. Graph- Vice President of finding appears fact contrary Union, 505, ic Arts International Local tes- overwhelming weight of the evidence. At presented tified and no to evidence contra- there beginning of the testimony dict Kanne’s regarding an oral many issues. issue of the addi- understanding concerning the fifth week of period tional vacation remained unresolved vacation. However, day until the final of the strike. Stuard, Special Representative
Carl N. “principal whether the was a vacation issue the International Brotherhood of Electrical issue” or not is irrelevant to the outcome of Workers, 1, testified, Local but could not was, Perhaps this case. vacation issue recall agreement whether or not an oral principal opinion suggests, merely as the concerning the fifth week of vacation had “laundry many one item on a list” or one of been made with that union. “bargaining chips” which the dock- expected “expended men in the bar- to be Metz, Jr., William F. President of St. However, gaining process.” there is no Union, 3, Louis Mailers testified that finding nonstriking a statutory basis for there was agreement no oral reached be- eligible employee bene- tween his regarding union and Pulitzer employee fits when that has a direct inter- vacation, fifth week of and indicated that dispute, merely est in the because the issue his union did not want Pulitzer to send' a in is not confirming employee letter which the has an interest existence of such an agreement. negotiations. Mr. Kanne “principal testified that such a issue” in the Sec- makes, agreement 1978, did exist. 288.040.5(1), no tion RSMo such liberty distinction. We are not at to create The foregoing evidence was sufficient eligibility through judicial leg- for benefits support the referee’s finding Pulitzer islation. agreement had made an merely —and an “unsolicited unilateral offer” —that Despité Commission’s any union obtained a fifth week of vaca- agreed nonstriking Pulitzer had tion, the provided employ- same would be vacation unions that the fifth week of ees who are the other members of unions. if it was granted would be to all the unions union, granted to one the Commission found apparent attempt In an to avoid the inev- eligible for benefits.1 The circuit necessarily itable result which would flow ineligible court found the claimants were facts, from what it found to be the 288.040.5(l)(b), for benefits under Commission declared that it was “not con- § 1978, ground they belonged vinced” a fifth involving the issue workers of which . principal week of vacation was “a issue “a or class of prem- employed between the union and the there were members at the employ- er,” directly and its ultimate . interest- decision that claimants ises . . [who were] picket nonstriking 1. The did not consider fusal to cross a line a Industrial Commission Newspaper employee participation. Meyer whether the act of the St. Louis does constitute Missouri, posting Guild in it “would sanction v. 240 Mo. notices that Industrial Commission of Also, picket partici 1022, 835, App. (1949). lines of Local 610” constituted pating meaning not to the strike within the when the its members Guild instructs 288.040.5(1)(a), pur picket participation. RSMo 1978. The stated cross a line it constitutes Co., Inc., pose permit Syndicate was to 90 N.J.Su- members of the Guild Basso News Voluntary (1966). picket per. refuse to cross the lines. re- 216 A.2d 605-06 dispute.” gain ed in the I would affirm the when he stands to or lose regard. of the circuit court in this dispute,” “when his the outcome of the If some of the members of the unions to wages, working hours or conditions will be directly which claimants in- dispute.” outcome of the affected dispute, terested then those members findings of fact the Commission in a constituted “class of workers” within the as a clearly this case establish matter of law meaning Nothing of the statute. interest in that claimants each have direct applicable statutory provisions authorizes a brought the labor about *12 contrary determination. stoppage of work. In reversing the circuit court’s Court, the Com- In before this its brief finding eligible claimants for bene- mission contends that it “would be unwise fits, the principal opinion concludes that the that an legal precedent by set a employees who had an interest in the fifth making unrequested unilateral offer to a week grade of vacation did not constitute a thereby union could on his own create a or class of workers in the contemplat- sense part direct interest on the of the members ed 288.040.5(l)(b), RSMo 1978. The of such union to a labor with anoth- principal opinion reaches this result fo- argument er union.” The that the direct cusing types attention on the of duties and unilaterally here involved was interest cre- striking functions that nonstriking Pulitzer, ated and that it was a mere employees performed. Contrasting offer, finding contradicts the Commission’s highly skilled and skilled character of the there were in fact oral or written nonstriking claimant-employees with the to which claim- agreements dockmen, unskilled character of striking belonged pertaining ants to the additional principal opinion “[tjhere concludes that principal opinion adopts vacation time. The was ample support in the record for the argument nearly verba- Commission’s commission’s finding, that the non-striking tim. The principal opinion surveys the evi- employees were not of the same finding contrary dence to the Commission’s class as striking Teamsters dockmen.” agreed the va- Pulitzer had extend In drawing conclusion, principal gave cation benefit to all the unions if it opinion vigorously distinguishes O’Dell v. union, that benefit to one and concludes Division of Employment Security, 376 commission could have con- (Mo.1964) S.W.2d 137 ground “[t]he both the sidered that direct benefit to striking and claimants nonstriking employees duties, in O’Dell from the speculative.” had similar vacation issue was worked side side, effect, and had the bargaining principal opinion same takes the agent. attempt This to say position that the legal class of work- that the Commission’s conclu- ers gain who would right contractual to a sion on what constitutes a “direct benefit” fifth week upon of vacation attaining Court, ten is binding on this but that Com- years’ seniority if the striking dockmen won finding mission’s factual that Pulitzer had that benefit was not a class because they writing agreed orally and in to extend shared little else in common with the dock- all if it vacation benefit its emphasizes men irrelevant differences gave the to the Teamsters is not benefit the exclusion of relevant similarities. position inverts binding on this Court. This judicial the normal standard for review whether,
The determinative question is action. The circuit court administrative under the factual situation as found and finding held that the Commission’s factual determined binding Perhaps, was on it. under the evi- were “directly interested” in the labor dis- dence, have found the Commission could pute within meaning 288.040.5(1), of § existed, it did agreements that no oral but Poggemoeller RSMo 1978. In v. Industrial fact, contrary. Missouri, 488, not do so. In it found to the Commission of 371 S.W.2d However, (Mo.App.1963), assuming it had found no oral is stated that “[a] directly claimant is interested in the agreements, argument labor the above principal .opinion the Commission and of
disregards the finding of the Commission Pansy Atkins, W. ATKINS and Burl some of the unions Pulitzer had Plaintiffs-Appellants, agreement pertain- entered into a written ing to additional vacation time. OF REGU- DEPARTMENT BUILDING argues that its find- Commission also SPRINGFIELD, LATIONS, CITY OF ing “directly that claimants inter- were not Defendant-Respondent. ested” in the is a fact, binding and as such this Court. on No. 61346. Poggemoeller It cites v. Industrial Commis- Missouri, sion, supra. The of this case Supreme circumstances Court clearly distinguish Poggemoeller it from the Division I. Here, the a fact
case. Commission found as April 8, 1980. in the event union was successful in its demand as to vacation
issue it would benefit “some of [the *13 members and thereafter some of union’s] the claimants or members of the unions belonged.”
which er- The Commission roneously determined that because the issue
involving a fifth was not a vacation week
“principal issue” in the dockmen, nonstriking
claimants were interested” “directly
the labor which caused work stoppage. Whether the made a Commission application
correct of law to the facts is an subject judicial issue of law which is review. claimants,
I would hold mem- that the as bers of unions with which the had agreed to extend of the addi- the benefits period incorporated tional vacation into the contract with Teamsters found “directly interested in the which caused
the stoppage of work” as that term is used 288.040.5(1), and were
therefore ineligible unemploy- to receive
ment Consequently, benefits. I would af- judgment
firm the of the circuit court that Pulitzer’s account Division Em- ployment Security charged not be should with the payments made the Commission
during stoppage. the Work conclusion, I appeal would dismiss the
by the because there is claimant-employees justiciable controversy
no as to them. I would affirm the of the circuit appeal court as to the brought by Com- mission.