*1 test, public highway in Idaho to the State of addition the blood there- ample under influence of intoxicat- evidence the intoxication of while liquor. the defendant. testified ing Several witnesses conduct; to his action and his manner of person driving such a “Any who is breath; speech; the odor of alcohol on his highway is vehicle on such a under opinion and their to therefrom that he was- liquor intoxicating if then influence not intoxicated. It been shown that has there, prior imbibing such from and prejudiced any ruling in made, person’s physical or mental liquor, that given by the struction court. facilities, normally utilized in such Judgment affirmed. affected and driving, and there are then McFADDEN,. McQUADE, J., and C. some, though not necessar- impaired to KNUDSON, JJ., concur. SMITH any particular, extent.” ily assigned is as giving of this instruction The correct, the last technically Though
error. worded. poorly is
line of instruction is set court wording approved by this 46, 202 Glanzman, Idaho in State v.
out
(1949) as follows:
P.2d 407
And However, P.2d does appear given as the instruction correct jury
would mislead the
rule. *2 Weston,
Eli A. Weston Richard E. Boise, appellant. for Powell, Employ- Frank H. counsel for Boise, Security Agency, respond- ent. *3 painter.
steam cleaner and Claimant was a member engaged of a union that was negotiations company concerning a labor negotiations contract. The were unsuccessful, and at meeting of the union Following a strike was called. notice to company, shop employees struck plant on October 1963. The con- strike tinued for about day six weeks. The after began, strike claimant was notified a letter Attorney from an representing the company, he could have his back if he immediately. returned to work Claimant reply did not to this letter nor did he return to work. later, Three weeks company informed claimant’s union that claimant and employee another replaced had been as of 22; October which information was com- municated to claimant. On approximately October company hiring commenced employees replace new 16 employees strike, company October McFADDEN, Justice. had approximately hired nine new men. has presents question that appeal This this previously been before Court On November his claimant filed application I.C. decision involves the initial claim for benefits the Employ- under 1366(j) to a claimant who not work- Security law 72— which claim was denied. ing by of a strike involved reason appeal On Ap- from this determination the employer. parties agree All peals Examiner the Employment Secur- dispute” .strike involved re- “labor ity Agency reversed the initial determi- *4 ferred in the the to subsection of statute. nation, holding that the of discontinuance by work the Claimant, Totorica, claimant was not a severance had been Teodoro employment thus, relationship, of the employed and by appellant Equip the Western Company, herein referred to as “the he could not be left em- held to have his company”, shop equipment ployment in its an voluntarily as good as without cause plant, employer’s in the stoppage of Ap a work
provided by 72-1366(f).1 The I.C: § than the em- a cessation of work peals that from and further held Examiner rather strike, ployee-claimant. day of the after October ex “stoppage which there was a of work” applied interpreted “stop- The Board and dispute hence isted of a because labor work”, page as did same manner (j)1, claimant reason of I.C. 72—1366 §. stated, Appeals Examiner, “The who ineligible during the work was for benefits interpret- phrase 'stoppage is be of work’ to However, stoppage. Appeals Examiner meaning employer’s stoppage ed as a of an stoppage found that work terminated this operation the- rather than the cessation of on October and that claimant was worker’s labors”. the Board’s conclu- eligible for after that date. it sions of law is stated: stoppage work “That a substantial appealed Appeals Ex- company plant existed at where normal aminer’s determination to Industrial employment relationship occurred, Board, Accident which affirmed the order * * *. That previous from and after October appeal determination and this stoppage the work terminated ap- taken from the Board’s order. In this employer peal and the returned to sub company first claims the Board stantially operation normal but the- interpreting "stoppage erred in of work” necessarily dispute did ter labor not as used in 72-1366(f) applying I.C. to § here are: Portions voluntarily “(f) “(a) the fact “(c) “(b) «(e) ment. duct “(d) “(g) “(b) (t “The benefit His in connection # * * [*] ** ** * * * * * personal eligibility # * * claimant are * * [*] that he left I.C. # without * * [*] * discharged 72-1366 good that— his conditions employment not due cause, pertinent employ- miscon- - with his shall in the labor dispute; “(j) “(1) before of work which aiding, page, “(2) eligible class of workers occurs, respect not isHe A benefit He does directly there were premises at the commencement to receive abetting, provided, apply not work; of whom to which interested exists because if participating, claimant or benefits for belong members which, directly is shown which caused are it is in the this subsection shall the'stoppage participating immediately found that interested financing, any employed stoppage dispute.” grade that— not be week stop- or
539 claimant, attempt interpret mínate that the court did not at time. That the 15, phrase work”, 1963, “stoppage of after was not unem for the issue October ployed court stoppage ‘due to a before the dis- of work was whether labor pute which exists existed after because of a labor the termination of dis pute’, unemployed but was contract with the due to a union. dispute only; therefore,
labor
respondent agency,
The
on the other
claimant
not rendered ineligible
hand, urges
phrase “stoppage
of
1366(j).”
benefits under I.C. 72—
stoppage
work” has
to the
of
reference
company
establishment,
The
employers
interpre work in the
and
asserts that this
incorrect,
tation
by
support
and in
reason of
of its
the individual work
contention
employee being
cites the
cases of Board
state of cessation
strike,
Review v.
Corp.,
Mid-Continent
of the
and
Petroleum
reason
cites the fol
36,
193
69,
lowing:
Okl.
141
(1943),
Allegheny
P.2d
Cumberland
Gas
and
Miners
Group
Hix,
Company
Hatcher,
in General
v.
123
v.
130
115
S.E.2d
637,
810,
;
W.Va.
17
(W.Va.1963)
Corp.
S.E.2d
Un
Erie Resistor
v.
Supreme
employment
Rev.,
Court of
Comp.
Oklahoma in
Pa.
the Mid
Bd. of
194
case,
307,
-Continent
supra,
Super.
Petroleum
(1961);
167
321
Mon
stated
A.2d
“ * * * (that)
Company
Thornbrough,
the word ‘work’ ordi
santo
v.
Chemical
narily
362,
to or comprehends
refers
(1958);
the ac
229 Ark.
314
493
Prod
S.W.2d
tivities
workman,
operation
not the
ucers Produce Co. v. Industrial Commis
factory.”
of a
sion,
996,
Virginia
(1956);
West
case
365 Mo.
291
166
S.W.2d
etc.,
Miners,
Hix, supra,
v.
An
Publishing
cited
Robert S. Abbott
Co. v.
nunzio,
559,
Oklahoma Court in
(1953);
Ill.
N.E.2d
Mid-Continent
112
101
414
case,
Review,
Petroleum
N.J.Super.
is stated:2 “The stat
Board
8
Ablondi v.
quoted
applies
71,
Ferst,
ute
above
to the
(1950);
individual
379, (1947); 662 Sakrison v. L.Rev. 72 N.E.2d Sakrison 528, Pierce, 162, A.L.R. 185 P.2d Ariz. 185 P.2d 173 Ariz. (1947); Baking Consequently Co. is now Lawrence view A.L.R. 480 Comm., Comp. generally accepted Michigan Unemployment v. ac A.L.R. means of business
308 Mich. work a cessation N.W.2d Kinney, Magner 141 Neb. tivity employer’s (1944); v. establishment *6 part (1942); 689 re Steel than the N.W.2d rather man, applicant The au 219 N.C. S.E.2d for benefits. in were Robert S. thorities reviewed Company Chemical v. In Monsanto Annunzio, Pub. 414 Ill. Abbott v.Co. Supreme supra, Court Thornbrough, the court 112 N.E.2d where the sim- an issue that was faced with of state interpreta majority that observed the There in instant case. ilar to one the the states, in tion is followed nineteen the court stated: ap minority the rule has been while upon is what turns “The issue plied administratively in Colorado and stoppage of phrase, ‘a by the meant judicially in Oklahoma.” appear in the words These work.’ many other Pub. An In Robert S. Abbott Co. v. unemployment acts of frequently nunzio, quotation, foregoing con- been cited in have the states and argued Supreme that the supra, : be the Court of Illinois stated It could strued. of work to refers cessation language ‘stoppage “The term of work’ in which employee, the part on the of in the the various used in statute synonymous phrase be would case the clearly of this court seems to decisions construction That unemployment. with the the refer to work Oklahoma, adopted but in fact was in department of the plant particular changed by an there rule was later the unem- plant and not the individual to the amendment to statute. ployment of the worker or workers. pointed provisions 7(d) out are a it has been The of section “Elsewhere English makes re-enactment of the Oklahoma view substantial 1911, and Act of stoppage of work mean- National Insurance reference to a statutory language re- ingless, sentence has this section has for the by the already unemployment and a settled construction mentioned ceived charged English presupposes that con- Authorities with existence of English prior Williams, act ‘The Labor Dis- administration of dition. See adoption Under pute Disqualification,’ Illinois. 8 Vanderbilt interpretation appears only the British of the word Idaho to be the state which disqualified qualifying the individual is does not use the ‘stoppage/ clause of “fac- tory, premises,” if due or words long import. However, to a trade similar so as the it is our con- clusion that he held continues to be vacant.” such words of limitation as employed in the statutes from the sister admitting relied Appellant, that the cases states, has place reference to and limits the present agency, upon by respondent dispute” where the occurs, “labor and not it, points to contrary urged view phrase to the “stoppage of work.” See: dissimilarity of the statutes involved 28 A.L.R.2d 1366(j). those cases from I.C. § 72 — statute and the Idaho difference between accept It is difficult for us to is that those involved cases other appellant’s “stoppage contention that denying eligibility while the Idaho statute is has work” reference to cessation of work during any claimant week for benefits for a employee. accept If we such mean- “unemployment when his ing, the statute in effect then would be stoppage of which exists because of a work “A read: benefit claimant shall not be ** dispute; ”, the other statutes eligible to receive benefits for week phrase comparable contained an additional respect to which it is found that his *7 following quotation, to the italicized so as unemployment an unemployment is due to ineligibility to establish for for a dispute.” which exists a because of labor during period claimant the when his “unem The logical interpre- more and reasonable ployment to a of work tation by respondent is that contended for
which exists because of a labor at agency, and which has been followed the factory, prem or other majority jurisdictions presented of * * ises, etc., *Appellant argues then problem. Resorts, with the Inter-Island that these additional words limit and refer Akahane, 140, Ltd. v. 46 Haw. P.2d 377 directly phrase “stoppage of work” 715, (1962); Pierce, Sakrison 66 v. Ariz. and since the Idaho Section of the .Statute 162, 508, 185 P.2d 173 480 (1947); A.L.R. employ does such language or make ref by respondent and cases cited out set above. erence “factory, establishment, to the employer’s premises,” considering present law, our it legislature the Idaho employing the term should be noted that a 1939 “stoppage amendment to of work” Compensation Unemployment pro .Law had reference to the cessation of the em ployees work, vided that a benefit claimant would be dis and not of to cessation employer’s business. qualified any period during of time
542 employment to a due to a severance of re- his
which temporary and do not include a existing dispute.” S.L.1939 lation “then labor However, interruption performance 239, 3, p. in the ch. 568 at of 569. § * * * Legislature services. Absence from the enacted 1947 Idaho leaving Employment Security repealed is not a of work where the Law merely temporary Unemployment intends a superseded Com- worker the old employment 269, p. interruption in the pensation S.L.1947, 66 law. ch. § strikers provides that relation. Such is the case of at act a 793 832. The new interrupted disqualified temporarily who have claimant will be from receiv- employment because of if is due to their ing benefits his view, prevailing dispute. "stoppage because Under the work which exists to have they deemed (See 1, have not been dispute.” su- a labor footnote amended, employment relation- it is terminated the pra). statute is When a voluntarily leaving dis- ship presumed legislature and the intended that qualification application no meaning from ac- has to have a different that Pigg them.” corded to it before the amendment. 233, Brockman,
v.
Idaho
314 P.2d
Company v.
Mill
R. Miller
See also: T.
(1954);
Johns,
the court stated: plant. Appel- employer’s of work” *8 to no evidence “Moreover, lant contends there was ‘leaving work’ terms agree finding. support cannot unemploy- such We ‘left his as work’ used Wenzel, the assertion, only Mr. compensation laws refer with this manager Wenzel, general appellant previously service testi- Mr. had testified before Appeals fied before the Board: Examiner: strike, “Q. company- you After the did the “Q. give any Can me idea as to attempt operate? to when the remainder staff was replaced ? Yes, shop my- "A. foreman and pretty “A. Ted on attempted close that. self to take care of We right hired two after emergency our work. We were not letter indicated we able care field would to take work, hiring. start On just the 8th we hired This was however. two, rapid- and I hired very on a them as limited basis—-what ly satisfactory employees could bring customers to us were get thereafter, equipment moving their available and I had * * again. eight say by or nine I would 15th of only October. hired I’ve “Q. you bring Then did start to back two since. your your mechanics and classi- “Q. I actually see. There was shop fied de- workers in ? crease in staff somewhat and We, eight days, “A. after we started “A. The workload was somewhat hiring people that felt we were lighter and it necessary wasn’t qualified required jobs. fill those many people have as as it “Q. you Can tell approximately us prior had been to the strike.” when, ever, if that was Qaimant Ap- Totorica testified before the held Mr. was filled? Totorica peals Examiner that within a week after Yes, called, “A. I strike hired a to do the observed fellow that the company
steam-cleaning commenced painting hiring employees new November within ap- three weeks had there been proximately eight employees. seven or new * * * “Q. A work is deemed to “Q. your shop Was operating other have ended employer when the resumed than on emergency an basis on substantially operations. normal Inter-Is October 15? Resorts, land Akahane, supra. Ltd. v. “A. October 15th—I appellant believe about five When resumed substantially nor point.” mal operations question ais of fact for
544 majority opinion imports pute. from The to sus- is sufficient record The Board. phrase, appellant of other states findings the statutes that Board’s
tain the establishment, factory, or other a “at had continued after October premises last em- he is or was operation a re- which with substantially normal ployed”, in amends our statute not be and effect finding will such and duced force language The Employ- by including such therein. Czarlinsky v. appeal. disturbed similarity unemployment com- 65, great of the 390 87 Idaho Agency, Security 298, pensation indi- laws of the various states Orbea, 372 Idaho 822; In re P.2d The fact that our cates common source. P.2d 132. adopt language refused to legislature Accident Industrial The order regarded quoted should not be last above is affirmed. Board omission should be ac- as accidental. Its No costs allowed. and the significance, omis- corded some supplied construc- sion should be SMITH, J., con- J., McQUADE, C. jurisdictions cited The in the tion. statutes cur. majority language omit- contain KNUD- TAYLOR, with whom Justice, legislature. It will suffice ted our SON, concurs J., (dissenting). specific terms call attention here to jurisdictions highly two statutes in adopted the construction disagree with
I opinion. The regarded majority in the phrase, opinion of the majority in the Arizona, deci- which the statute of under stat- our as used “stoppage of work” Pierce, Ariz. language of 1366(j). The sion Sakrison v. ute, I.C. § 72— unambiguous. is that clear (1947) subsection P.2d 173 A.L.R. provides: It no construction. It needs written is as follows: be “(j) A claimant shall not benefit respect “(d) any For week with any eligible to receive finds that his which the commission respect is found week partial unemployment or total due to a is stoppage which exists to a of work be- stoppage of work which exists dispute, of a labor strike or because * * dispute; labor cause factory, lock-out at the support premises In the record will not other this case at which any employed Arizona than claimant’s was last other conclusion Act, Employment Security 56-1005 due to a (d). dis- labor work which existed because provision dispute, statute con- Hawaiian eligible and he was not Resorts, Aka-
strued in Inter-Island
Ltd. v.
for benefits. The record further
shows
hane,
(1962)
46 Haw.