Opinion
No. 89CA0842
Decided April 26, 1990. Rehearing Denied May 24, 1990. Certiorari Denied September 10, 1990 (90SC343).
Review of Order from the Industrial Claim Appeals Office of the State of Colorado
John P. Bowen, for Petitioners.
Duane Woodard, Attorney General, Charles B. Howe, Chief Deputy Attorney General, Richard H. Forman, Solicitor General, Mary Ann Whiteside, First Assistant Attorney General, for Respondent Industrial Claim Appeals Office of the State of Colorado.
Sherman Howard, Charles W. Newcom, Gilbert M. Roman, for Respondent Dillon Companies, Inc.
Petitioners, Regina L. Abbott and other members of United Food and Commercial Workers Local 7 (claimants), seek review of a final order of the Industrial Claim Appeals Office (Panel) which held that claimants were ineligible for unemployment compensation benefits for the period from May 10, 1987, through June 13, 1987. We affirm.
In the spring of 1987, a dispute arose in connection with the expiration of a labor contract between Dillon Companies, Inc., and the United Food and Commercial Workers Union Local 7. Prior to expiration of the contract on May 2, Local 7 and Dillon attempted to negotiate a new contract. The union requested a one-year extension on the existing contract. Dillon was not willing to reach agreement on that basis and requested a number of concessions.
When Dillon persisted in its efforts to negotiate concessions, Local 7 gave Dillon a ten-day strike notice on April 27. On April 28, Dillon notified Local 7 that after May 2, it would honor only those contract provisions it was required to honor by law.
Dillon and Local 7 then agreed to extend the contract until May 8 and negotiations continued. On May 5 and 6, Dillon presented what it denominated as "its last, best and final offer" in the negotiations. However, testimony presented on behalf of Dillon indicated that the offer was not necessarily final, that an impasse between the parties had not been reached, and that it was prepared to negotiate further if any significant counterproposal was made by Local 7.
Instead, in response to Dillon's "final offer," Local 7 withdrew its offer to continue the existing contract on May 7. On May 8, the union established picket lines, and its members stopped reporting to work.
After picketing was initiated, Dillon notified the union that a "legal impasse" existed and implemented the provisions of its May 5 "final offer." Throughout the negotiations and the strike, work was available to the claimants through Dillon. The parties finally resolved their dispute in June.
The hearing officer found that the cause of the cessation of claimants' work was not Dillon's "final offer." Rather, the hearing officer found that cessation of work resulted from initiation of the strike. Accordingly, the hearing officer concluded that claimants were precluded from receiving unemployment compensation benefits by § 8-73-109(1), C.R.S. (1986 Repl. Vol. 3B). The Panel affirmed.
Section 8-73-109(1) provides:
"An individual is ineligible for unemployment compensation benefits for any week with respect to which the division [of Employment and Training] finds that his total or partial unemployment is due to a strike or labor dispute . . . . If his unemployment is due to a lockout . . . the individual will not be determined ineligible unless the lockout results from the demands of employees as distinguished from an effort on the part of the employer to deprive the employees of some advantage they already possess."
In some jurisdictions, an employer is deemed to create a "constructive lockout" if an ultimatum is issued to the employees with unreasonable terms such that the employees have no alternative but to strike. See Sunstar Foods, Inc. v. Uhlendorf, 310 N.W.2d 80 (Minn. 1981). On review, claimants contend that the Panel erred in affirming the hearing officer because Dillon created a constructive lockout by issuing its "final offer." We find no merit in this contention.
We concur with the Panel that, even if we assume that the constructive lockout doctrine applies in this jurisdiction, there is no basis for its application here. This is because the hearing officer specifically found as an ultimate finding of fact that the cessation of claimants' work resulted from a strike and not from the issuance of the "final offer."
In sum, the hearing officer obviously believed testimony presented on behalf of Dillon that the "final offer" was neither intended to conclude negotiations nor to preclude other concessions by Dillon, and that the strike precipitated implementation of the final offer. Like the Panel, we are unable to conclude that this finding is contrary to the weight of the evidence. See Federico v. Brannan Sand Gravel Co., 788 P.2d 1268 (Colo. 1990).
Finally, contrary to the analysis in Erie Forge Steel Corp. v. Unemployment Compensation Board of Review, 400 Pa. 440, 163 A.2d 91 (1960), we do not construe § 8-73-109(1) as imposing any duty upon Dillon to adhere to the terms of an expired contract for a reasonable time in order to avoid liability for unemployment benefits due to a lockout.
The order is affirmed.
JUDGE JONES concurs.
JUDGE DUBOFSKY dissents.