Trade Dispute TD 160
Picketing is one of the factors considered in determining whether or not a claimant is involved in a trade dispute, but never in itself proves that the claimant is involved. There is nothing in the Code which states that a claimant is ineligible because he/she walks a picket line.
The Board has been called upon from time to time to rule on the eligibility of a claimant who is picketing, but is in no other way involved in the trade dispute. As the Board said in Benefit Decision 6715:
"Although. . .the claimants continued to participate in the picketing until April 6, 1962, we consider this immaterial."
Some claimants who are not members of the striking union may join the picketing out of sympathy. If they did not voluntarily leave their work due to the trade dispute, they are not ineligible for benefits.
In Benefit Decision 5757, the claimants were employed as radio operators by various steamship companies. The other maritime unions struck the steamship companies, and as each vessel came to port, it was removed from service. Since there is no work available for radio operators while a vessel is in port, the claimants were laid off by the employers. Some of the claimants engaged in picketing for the purpose of protesting against the alleged delay in reaching a new collective bargaining agreement.
The Board held that the claimants were not unemployed due to a trade dispute, even those claimants who participated in the picketing:
"It is our opinion that the unemployment of the claimants herein was not due to any voluntary action on their part but rather was due to the inability of their employer to provide work for them . . . . The performance of picket duty by some of the claimants while indicating an interest in a favorable conclusion to the trade dispute did not constitute a leaving of work within the meaning of Section 56 (a) (1262) of the Act since their involuntary unemployment occurred prior to their performance of picket duty."
Undoubtedly, if the claimants had voluntarily left their employment in order to assist the other maritime unions with their picketing, the board would have held that they were unemployed due to a trade dispute. But, once the claimants were laid off by the employers, what they did while on layoff could not affect their reason for leaving their jobs.
In Benefit Decision 4826, the claimants were laid off for lack of work on August 5. Since the claimants did not leave their work due to the trade dispute, they were not ineligible under Section 1262. On August 12, the claimants established a picket line at the employer’s place of business. This was done to "keep the other men from getting their jobs". The Board held that these claimants were not ineligible for benefits despite the picket line, and said:
"On August 12, 1946, the claimants became active participants in a trade dispute with their employer by establishing picket lines at the employer’s establishments in protest against the employer’s resumption of operations and hiring of workers from the rival union. However, on that date, the employer had not offered to put the claimants back to work and it cannot be said that the unemployment which was involuntary when it commenced was any the less so merely because the claimants established a picket line. We hold, therefore, that when the claimants were laid off between July 28, 1946, and August 5, 1946, and when they established a picket line on August 12, 1946, they had not left their work because of a trade dispute and were not subject to disqualification for benefits under Section 56(a) (1262)."
A claimant who is originally disqualified because he/she left work due to a trade dispute will not remain ineligible if he/she continues to picket after he/she is unequivocally discharged by the employer. The is because the cause of the unemployment is no longer the trade dispute.
In Benefit Decision 6703, the claimants’ union called a strike effective November 2, 1960. Pickets were maintained about the entrances of the employer’s establishment from November 2 until December 16. The claimants were replaced by the employer beginning November 4. The Board held that the claimants were no longer ineligible once they were replaced, despite the picketing.
"In the present case, all of the claimants. . .were replaced and notified that the employment relationship was terminated. The employer intended that the notices were of unequivocal discharge. Even though the claimants may have applied for reemployment, and even though they continued to participate in the trade dispute to the extent that they picketed the premises of the employer, we hold, in accordance with the California Supreme Court in the Ruberoid case, that the claimants were no longer ineligible for benefits under Section 1262 of the Code after they were discharged and permanently replaced."
B. Violence on the Picket Line
In Benefit Decision 6497, the claimants contended that they did not cross the picket line because of fear of bodily harm and thus their actions were not voluntary. There was no evidence of any violence in connection with the picketing activity of this union; and there was no evidence of any threats of violence or reprisal. Nevertheless, each claimant allegedly refused to cross the picket line because of a personal fear of bodily injury or of future reprisal against himself or his family. The employer’s office and supervisory personnel passed through the picket line without molestation.
The Board held:
"Under Section 1262 of the Unemployment Insurance Code, an individual who is otherwise eligible for benefits is made ineligible as therein provided if he has left his work because of a trade dispute. The ineligibility imposed by this Section extends to those individuals who are or become voluntary participants in such a dispute. . .
One may become a voluntary participant in a trade dispute in which he is not originally involved if by his actions he adopts it and makes it his own. Such is the case for example when, with work available, he chooses out of respect for his union principles not to work in a plant where his fellow employees are out on strike. Where an individual is unemployed as a result thereof, he is ineligible under Section 1262 of the code.
In the case before us, the crucial question is that of the motivation which impelled the claimants to let the picket line of another union separate them from suitable and available work on the employers’ premises. The referee who observed the witnesses and heard their testimony resolved this issue of fact against the claimants. There is ample evidence to support the findings of the referee to the effect that his picket line was a peaceful one and that the claimants had refused to cross it not out of fear of bodily harm or reprisal but because of loyalty to their union principles. The claimants had adopted as their own the trade dispute of their fellow employees who were on strike. Since the findings of the referee are not against the weight of the evidence, they are affirmed and we hold that the claimants had voluntarily left their work because of the trade dispute."
In PB 112, the picket line of Glass Bottle Blowers Association (GBBA) Local 29 consisted of two or three pickets at each gate. There was no mass picketing and no violence on the picket line or destruction of property. However, threats were made to a number of members of GBBA Local 137 who approached the picket line. These threats were not necessarily that these members of Local 137 would be physically accosted upon crossing the picket line, but there were to the effect that once the picket lines were crossed those individuals who did cross would be noticed and for that reason they would have cause to fear for their physical wellbeing after leaving the plant or to fear damage to their property, such as to their automobiles. Many of the members of Local 137 expressed fear as to what might happen to them as they left their place of work to go to the washroom and many were fearful what might happen when they left the employer’s premises.
Some of the threats were of the following general nature:
- Go home, if you know what is good for you.
- Come ahead and try it.
- You better not try to cross if you know what’s good for you.
- If you know what’s good for you, you’ll go home and stay.
- You’ll be sorry if you cross.
- What would happen if I crossed the line. Why don’t you come ahead and try it.
- You don’t want to go in there do you? You know you don’t want to go in there.
- You don’t belong here. Get the hell home.
- One of the claimants asked a picket if she could go into work. He told her to go ahead but that she might have four flat tires on her car when she returned.
- A picket stated that, although the crossing workers might get in the plant, there was no assurance they would get out.
- Why don’t you go home where you belong.
- If you do go in, you will not have a car when you get out.
- You better not cross the picket line if you know what is good for you. You know what You are if you cross.
- It wouldn’t be advisable to cross the picket line.
- Nobody is in and nobody is going in.
The Appeals Board held that the claimants who received the above threats were disqualified under Section 1262, and stated:
"As to those claimants who testified concerning threats directed at them by pickets or generally in the course of the meeting called by Local 29, it is our opinion that statements to which the claimants referred and which are set out in part in the statement of facts, are statements of a type which could be expected generally at any strike or any picket line where the striking union does not wish other union members to cross the line. However, we are of the opinion that statements of this nature, which we believe are common to any strike, do not establish a reasonable fear in the nonstriking workers which would justify the failure to cross the picket line. The fear of violence must be real and not nebulous. Because the claimants say that they are afraid of the pickets is not enough and the mere presence of the pickets is not enough to excuse the claimants from crossing the picket lines."
However, if the evidence shows there is danger to the claimants if they crossed the picket line, the Board has held they do not have a choice, and thus are not considered to have voluntarily left their work due to a trade dispute.
This was the decision of the Board in BD 4878. The claimant, a member of the electrical workers union became unemployed when the employer became involved in a trade dispute with another union. The claimant was given a pass by the striking union, but despite this pass he was threatened with a baseball bat when he attempted to cross the picket line. The Board held that the claimant was eligible under Section 1262, and said:
"The evidence in this case establishes that the claimant left his employment on or about November 2, 1945, because of the existence of a menacing and intimidating picket line. That the claimant’s fear of bodily harm is well founded is established, not only by his own testimony, but by the testimony and evidence developed in other cases before us involving the employer herein. . .we hold in the instant appeal that the claimant was forcibly prevented from reporting for work on and after November 2, 1945, and that he did not voluntarily leave his work because of a trade dispute so as to be disqualified from benefits under the provisions of Section 56(a) (1262) of the Unemployment Insurance Act."
C. Union Reprisals for Crossing Picket Line
A claimant may state that he/she has elected not to cross a picket line because of possible disciplinary action by his/her union. This may include a fine, suspension, or expulsion from the union as established by the union by-laws.
It is not uncommon for union by-laws to include such disciplinary provisions. However, to provide that union claimants are not subject to disqualification due to such provisions would, in effect, nullify the disqualifying provisions of Section 1262. Accordingly, the refusal to report to work during a trade dispute based on union disciplinary action does not make the claimant eligible under Section 1262.