Texas Co. v. Texas Employment Commission (261 S.W.2d 178, 1953)

PER CURIAM.

The appellant, The Texas Company, brought suit in the district court of Jefferson County against the appellees, the Texas Employment Commission and forty-four individuals, to secure a judicial review of a final decision and award by Texas Employment Commission of unemployment compensation benefits to the forty-four individual appellees, employees of the appellant. The district court heard the case without a jury and rendered judgment in favor or appellees, holding that the decision of the Texas Employment Commission was supported by substantial evidence and that the substantial evidence rule applies to decisions and awards of such commission. The appellant has duly perfected its appeal from such judgment, under the provisions of the Texas Unemployment Compensation Act, Article 5221b — 1 et seq., Vernon’s Annotated Civil Statutes of Texas.

The core of this dispute is to be found iñ the construction of the following portion of said Texas Unemployment Compensation Act, Article 5221b — 3(d) :

“An individual shall be disqualified for benefits:

* * * * * *

“(d)- For any benefit period with respect to which the commission finds that his total or partial unemployment is due to a stoppage of work which exists because of a labor dispute at the factory, establishment, or other premises (including a vessel) at which he is or was last employed, provided- that-this subsection shall not apply if it is shown to the satisfaction of the Commission-that:

“(1) He is not participating in or financing or directly interested in the labor dispute which caused the stoppage of work”.

The forty-four individual appellees were non-striking employees of the appellant before ánd during the strike of the Oil Workers Union at the several plants of appellant in Jefferson County in 1950. They were machinists and were members of the Machinists Union, which is a separate union from the Oil Workers Union, the one which was on strike. The appellant had work for them at its plants where they were regularly employed and so notified them. They appeared at the plants ready to work but did not cross the picket .lines of the striking oil ⅛/orkers union. They testified that their refusal to cross the picket lines was caused by their fear of physical violence to themselves and their families by the strikers. The appellant sáys that if they had such fear it was groundless, and that no violence had occurred at that time at any of the'- gates to any of its struck plants; that such refusal to cross the striking union’s picket lines was in effect a participation in the strike of the members of the oil workers union,' within the meaning of •the language of the section of the statute 'quoted above, and that they are. thereby 'disqualified from receiving such benefits of Unemployment Compensation.

The men have been paid their compensation, and the appeal does not have the effect of a supersedeas or stay of the award, by the express provisions of the Act itself.

Both the appellant and the appellees have presented most able and excellent briefs on appeal. The principal question to be decided here .is one of first impression in the jurisprudence of this state, and the parties in their briefs have- favored the -court with thorough discussions of the various law questions involved.

By its first point, the appellant contends that the trial court erred in affirming and sustaining the decision of the Texas Employment Commission awarding unemployment compensation to the individual ap-pellees, thereby holding that said individuals were not “participating in” a labor dispute within the meaning -of the Téxas Unemployment Act, the section quoted above, when they refused to cross a picket line to perform their available work. By its second point it contends that the trial court erred in concluding as a matter of law that there is no participation in a labor dispute within the meaning of the quoted section of the Texas Unemployment Compensation Act when it is established that the non-striking employees failed to cross a picket line because of fear of violence which is well founded. These points are presented together in the brief, and we-Consider them together here. The appellant does not contend that the individual ap-pellees, the non-striking employees, were financing or directly interested in the labor dispute then in progress. As stated in its brief, “its sole contention is that the appel-lee claimants, in failing and refusing to cross the' respective picket lines established by the striking ’unions,’ and to perform work available to them, were thereby “participating in” the labor dispute in question and are thereby disqualified for benefits”, it cites no'Texas case as authority for this statement; and there' is nohe. We might add that there are no Texas decisions to the contrary. Appellant cites and relies upon three decisions by the Supreme Court of Washington and one by the" Supreme Court of New Jersey in support of its view of the law. They are In re Persons "Employed at St. Paul & Tacoma Lumber Company, 7 Wash.2d 580, 110 P.2d 877; Andreas v. Bates, 14 Wash.2d 322, 128 P.2d 300; In re Poison Lumber & Shingle Mills, 19 Wash.2d 467, 143 P.2d 316; Aitken v. Board of Review of Unemployment Compensation Commission, 136 N.J.L. 372, 56 A.2d 587. We find that these cases are predicated to a great extent upon the fact that the claimants refused to cross the ■picket lines because of their belief in union principles, and not because of any fear of "bodily harm. They are not in point and .are of no assistance to us in the immediate •question under study.

The appellees freely concede in théir brief that if the individual appellees refused -to cross the picket lines of the striking ■union in this case because of union principles in opposition to crossing any picket lines, then they would be participating in the strike and would be ineligible to the benefits of the Unemployment Compensation Act. The case of Meyer v. Industrial Commission of Missouri, 240 Mo.App. 1022, 223 S.W.2d 835, dealt with the question of whether one who refuses to cross a picket line because of well-founded fear of physical violence and harm is participating in a labor dispute, within the meaning of .an unemployment compensation act similar to the Texas act. The principle is announced there that such a refusal would not be a voluntary refusal to : cross the picket line and hence would not constitute participating in the labor dispute.. In- that case the court upheld the state commission in refusing unemployment compensation because of its holding that the claimants had no actual reason to fear violence. The rule is statqd, however, as is contended for by the appellees. In the case of Steamship Trade Association of Baltimore, Inc., v. Davis, 190 Md. 215, 57 A.2d 818, 820, the Maryland Court of Appeal -passe.d upon the the question and arrived at the same com elusion as to the law. The. court there held:

“The basic question-. before this. Court is whether there were material facts to support the -findings of the Board that the appellees did not participate in the strike * * * from * * * to * * •*. It is admitted by the claimants that they did not cross the picket lines established by the strikers on the dates in question. They alleged, and the Board found, that the reason the appellees did not cross these picket lines was because of a fear of physical violence evidenced by the threatening attitude of the strikers.

“The courts must presume that strikers are law-abiding. There must be more than a mere theatrical threat of violence. The fear of violence must be real and not nebulous., Just because claimants say that they are afraid of the pickets is not enough and the mere presence of the pickets is not enough to excuse claimants from crossing picket lines.”

The court then reviewed the evidence of threats of violence proved, and found that it was in support of the finding of the Board; that the men were entitled to unemployment compensation and were not participating in the strike. It also distinguished its holding in the recent case of Brown v. Maryland Unemployment Compensation Board, 189 Md. 233, 55 A.2d 696, 698, in which, it held that a non-striking workman who voluntarily refused to cross a picket line was participating in a labor dispute and was therefore ineligible to unemployment compensation. It pointed out that in the Brown case there was no evidence of any threating attitude on the part of the strikers and no evidence of fear of violence. It held that in the case before it, the Davis case, the evidence of threats and fear of violence was sufficient to support the order of the Board, and affirmed it, allowing compensation benefits.

The appellant argues under .these two points that if it be held in the present ease; that a- claimant who refuses to-cross a picket line of another, union .because:of a well-founded'fear of violence .-and physical harm is not participating in a labor dispute, then the court would be entering the legislative field and engrafting upon the Texas Unemployment Compensation Act a clause which the legislature did not include in -the act. .We do-not agree,. It is believed to be logical that had the legislature foreseen that such a situation would arise in the administration of the Unemployment Compensation Act as the present one,'and it had intended that a non-striking workman who refuses . to • cross a picket, line because of well-founded fear of physical violence: to him or his family should be ineligible to receive the ' benefits of the Act, ' it would have so stated in plain unambiguous language. ■ Quite evidently the legislature foresaw that a situation w’ould arise in the administration of'the Act when some workmen were going to be unemployed because of a labor dispute at their place of employment and that not all of'them ought to be ineligible to receive unemployment compensation. It therefore provided that benefits of the Act should be ,allowed to go to those who could show, to the satisfaction of the Commission, that they were not participating in or financing or directly interested in the labor dispute which caused the stoppage of work. The legislature took this practical and realistic view of the possibilities as to future happenings in labor disputes and strikes, knowing that there had been violence in labor disputes long before the Unemployment Compensation Acts were passed in the' various states of the union, and would probably continue to occur after the acts were passed. It stated in the preamble to the Act that its purpose was to “provide an orderly system of contributions for the care of the justifiably unemployed' during times of economic difficulty”. We believe that a nonstriking workman who is prevented from going to his job at a plant where a strike is in progress by threats and fear of violence is justifiably unemployed, that he is not participating in the strike, and that he is entitled to the benefits of the Act.

The trial court was not in- error in its holdings complained of in appellant’s first and second points and they are overruled.

The appellant’s third point is that the trial, court erred-in holding that the trial of the cause was governed by the applicability of the substantial evidence rule. The substantial evidence rule is a rule of law by ■which the courts have limited their power to review an administrative agency’s orders and decisions in the exercise of the discretion granted to the particular, agency by the Legislature. Where .the Legislature has granted an administrative body a discretionary power, the court will not substitute its own discretion for that of the administrator, and- if the action of. the administrative agency is reasonably supported by substantial evidence intro,duped before the' court,, the court will affirm • the administrative agency’s actions. Railroad Commission v. Shell Oil Company, 139 Tex. 66, 161 S.W.2d 1022; Board of Firemen’s Relief & Retirement, etc. v. Marks, Tex.Sup., 242 S.W.2d 181, 182, 27 A.L.R.2d 965, and cases cited therein. At the time when the instant case was submitted there was but one authority in Texas holding that the Texas Employment Commission was such an agency and that its orders and acts must be reviewed by the courts in compliance with the substantial evidence rule above. That was the case of Todd Shipyards Corp. v. Texas Employment Commission, Tex.Civ.App., 245 S.W.2d 371, and that case was then before the Supreme Court on application for writ of error. The court in that case held that the substantial rulé applies to an action by an employer to review a decision-of the Texas Employment Commission. The Supreme Court recently refused the-application for writ of error, no reversible error. We' assume therefore that the question has been settled in this state and on the authority of Todd Shipyards Corp. v. Texas Employment Commission, supra,, we make the same holding here and the third point is overruled.

Appellant’s points number four to-twelve, inclusive, attack in various ways, the sufficiency of the evidence in the trial court to show that .the decision of the Commission was reasonably supported by substantial evidence. It relies to some extent. upon various findings of. fact made by the trial court. It refers to the original findings of fact and to additional findings of fact made by the trial court in response to appellant’s requests therefor. We have concluded that these findings can have no bearing upon the disposition of this appeal. The Employment Commission, the administrative agency, is the fact-finding body and the question to be determined by this court is strictly one of law. Furthermore, the question must be determined by the court from a consideration of .the entire record in the case as that record has been made in the trial court. The test is not whether the evidence admitted in court -preponderates against the administrative decision, nor yet whether there is merely some evidence to support the decision. The test is whether the administrative decision finds reasonable support in substantial evidence. Board of Firemen’s Relief & Retirement Fund Trustees v. Marks, Tex.Sup., 242 S.W.2d 181, at page 183. With this test in mind, it becomes our duty to evaluate the evidence in this case and determine whether it is substantial evidence which reasonably supports the ruling that the individual appellees, the claimants, were deterred from crossing the strikers’ picket lines at the appellant’s plants by well-founded fear of violence and bodily harm.

On April 4, 1950 the Oil Workers International Union and its Locals Nos. 23 .and 228, because of labor dispute with the appellant, The Texas Company, called .a strike and stoppage of work against the .appellant’s plants located at Port Arthur and Port Neches in Jefferson County, Tex.as. Picket lines were established at the Port Arthur Works, the Case and Package Division, approximately three miles from the Port Arthur Works, and the Port Neches Works, located at Port Neches about nine miles from the Port Arthur Works.

The forty-four appellee claimants were not members of the Oil Workers Union but were members of the International Association of Machinists and the local lodges .thereof. Of the said forty-four claimants, rtwenty-six were employed at the appellant’s Case and Package Division in Port Arthur and eighteen employed at its Port Neches Works. The local lodges of such Machinists Union were the certified bargaining representatives of the forty-four claimants. They were under contracts with The Texas Company which governed their rates of pay, wages, hours of employment and other conditions of employment. Their contracts provided for no strikes, stoppage or slowing down of work on the part of the machinists and the Company agreed that there would be no lockout of the union on the part of the Company.

During the entire course of the strike from April 4, to July 31, 1950 work was available to each of the appellee claimants at their accustomed jobs.

When the several individual claimants appeared at their respective places of emr ployment for work on the morning of April 5, 1950, the first day of the strike, pickets were established at the entrance gates at the two plants where they worked. In addition there were large congregations of striking Oil Workers Updon members within the immediate vicinity of the entrance gates of both plants. On being informed that a strike was in progress the claimant appellees did not cross the picket lines to work at their respective jobs because of their fear of the consequences to themselves and their families if they did so. They immediately notified their business representative of the situation and were told by him that under the terms of the existing contract between their respective Machinists Union locals and the appellant it was their obligation to report to work notwithstanding the strike of the Oil Workers Union and the presence