GORDON B. WHEELER vs. DIRECTOR OF THE DIVISION OF EMPLOYMENT SECURITY & another.

CUTTER, J. Wheeler was and is a captain-pilot employed by Eastern Air Lines, Inc. (Eastern), also named as a respondent. For some time prior to June 23, 1962, Eastern's flight engineers had been negotiating a new labor contract with Eastern. There was in dispute principally a "proposed reduction of the crew complement in jet aircraft by one member, [from four members (three pilots and one flight engineer) to three members], with the flight engineers

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insisting that the third member of the crew should come up from the ranks of airline mechanics with a flight engineer's ticket, while . . . [Eastern] wanted the third seat occupied by a so-called pilot-trained mechanic." [Note 1] The negotiations "reached an impasse." The flight engineers called a strike. Eastern cancelled all flights. All employees in Massachusetts, with few exceptions, were laid off, and there was a complete cessation of operations.

Wheeler claimed unemployment compensation. The director disqualified him from receiving benefits for the week ending June 30, 1962, and during subsequent weeks, while stoppage of work continued because of a labor dispute at his place of employment, to and including September 13, 1962. The board of review affirmed the determinations of the director. Wheeler thereupon filed this petition for review in the East Boston District Court. The trial judge concluded that "the findings of the [b]oard of [r]eview were warranted by the evidence" [Note 2] and in effect affirmed the board's decision. Wheeler appealed. The case is before us upon the report of the district judge.

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The board of review found that a group of claimants, of whom Wheeler was one, had been "operating from the Logan Airport, East Boston." [Note 3] Their authorized collective bargaining agent was Air Line Pilots Association, International. The flight engineers were represented by a different union. If "the flight engineers prevailed" in their contention, they would lose no position in jet aircraft "and the pilots would lose one job now held down by a pilot. . . . [E]xcept for the labor dispute work stoppage, the claimants would have been in employment. Therefore, their unemployment was due to that cause."

The board's findings continued, "There was no evidence of refusal to pass picket lines . . . [or] that the claimants in any way financed the action of the striking flight engineers. . . . [A] finding would be justified that the claimants . . . were, in fact, opposed to the striking employees. . . . If the flight engineers prevailed, the pilots would lose one crew member in most . . . flights, and this definitely indicates that they had something to lose by reason of the strike and were directly interested in the outcome of the strike. . . . It was advanced by counsel . . . that since none of the planes based at Logan Airport were jet-propelled, and all of the claimants operated from Logan Airport, they would not be affected by the outcome . . .. With this we do not agree. . . . [W]e find that if the flight engineers prevailed, it would affect the claimants somewhere along the line as members of the same union. . . . [I]t was admitted that some seniority adjustment would be necessary."

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The board concluded (with reference to the provisions of Section 25 [b] [2]), "Although the claimants obviously occupy positions of greater responsibility, receive more pay, require greater training, and belong to a different union than the strikers, this does not prevent them from being in the same class within the meaning of the [l]aw. The real test is whether . . . all are engaged in an integrated operation which, under normal conditions, could not be performed one without the other. . . . Their work was mutually dependent and correlated. The failure of one group to work made it impossible for the other groups to continue. They performed work under the same general conditions and under the same management as those who were on strike, and while there may have been a difference in the grade of work and the rates of pay between the groups, being air flight personnel they were all in the same class. Consequently, the claimants do not meet the exceptions provided by the" applicable statutes (emphasis supplied).

This case arises under G. L. c. 151A, Section 25 (as amended through St. 1959, c. 554), which is set out in the margin. [Note 4]

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There can be no doubt that Wheeler's unemployment was caused by the labor dispute and the resulting work stoppage. Wheeler cannot obtain benefits unless he sustains the burden of showing "to the satisfaction of the director" that he meets the conditions defined in Section 25 (b) (1) and also those set out in Section 25 (b) (2). See Martineau v. Director of the Div. of Employment Security, 329 Mass. 44, 51.

1. We consider first the exemption afforded by Section 25 (b) (1), which requires the board to be satisfied (among other things) that Wheeler was not "directly interested in the labor dispute which caused the [work] stoppage." Wheeler contends that there was no substantial evidence which would warrant the board's findings (a) "that if the flight engineers prevailed, they would hold their own position and the pilots would lose one job now being held down by a pilot," and (b) that the pilots "had something to lose by reason of the strike and were directly interested in the outcome."

In context the first finding, (a) just mentioned, relates to the controversy over the occupants of the cockpit on jet aircraft and does not relate, at least directly, to piston-operated aircraft. There is no indication in this statement that the composition of the cockpit crew of piston-type aircraft was in controversy. As to jet aircraft, the finding was warranted by the evidence of the plan to reduce the jet cockpit crew from four to three and the efforts to have the third man a flight engineer, rather than a pilot.

The second finding, (b) above, was apparently based upon the same evidence, and, in addition, upon evidence in substance that the increased competition for the diminished number of seats in jet cockpits might have some effect upon the pilots in piston-type aircraft. Wheeler himself testified that the "third pilot . . . [would be] removed from the [jet] cockpit. He has not lost his job but he is out of the jet cockpit. Q. Where does he go? A. There . . . [are] other aircraft we fly besides jets. Q. Other pilots are flying those? A. Certainly. Q. Somebody has to go? A. This is your assumption, not mine. Q. If you

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. . . throw into another grade pilots on jets, you will have a surplus of pilots? A. Possibly true. Q. Somebody will lose a job? A. We have a [pilot] surplus . . . now because Eastern . . . had to curtail . . . flights." Although Wheeler also testified that "In relation to this three-man pilot crew" he could not be harmed by having flight engineers become pilot-qualified, the colloquy just set out tended to establish [Note 5] that, through the working of the seniority rules for pilots (also in evidence), Wheeler and other piston-type aircraft pilots might be adversely affected in some measure by the outcome of the strike. We think that the board's conclusion, quoted above, that the pilots "had something to lose by reason of the strike and were directly interested in the outcome" meant that, if the flight engineers' position should be sustained, then each pilot of piston-type aircraft, through the operation of the pilots' seniority rules, would be likely to be affected somewhat in his opportunities for, and conditions of, employment.

In Martineau v. Director of the Div. of Employment Security, 329 Mass. 44, 46-50, this court considered Section 25 (b) (1), [Note 6] and said (p. 49), "The claimant was not a member of the union which initiated the strike and he refrained from any activity in support of it, and the contrary is not contended. His position is, therefore, that he should not be deprived of benefits for a loss precipitated entirely by the efforts of others. That there is force in this argument cannot be denied. The statute, however, does not confine disqualification to those employees who participate in or finance the

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labor dispute. In addition, it withholds benefits from employees who are `directly interested in the labor dispute.' . . . Most of the statutes in other jurisdictions contain provisions . . . similar to Section 25. Although the authorities are not uniform, the prevailing view is that a person is `directly interested' in a dispute when his wages, hours, or conditions of work will be affected favorably or adversely by the outcome. It is of no consequence that the person is not a member of the union conducting the strike or that he may not be in sympathy with its purposes." The Martineau case was remanded to the board of review because the board's findings of fact were inadequate, but in taking this action, the court pointed out (p. 51) "that the claimant has the burden of proving that he comes within . . . [the] exceptions" of Section 25 (b) (1) and (2). See Nobes v. Unemployment Compensation Commn. 313 Mich. 472, 479-481 (nonunion members possibly interested because of an effort by the union to put "into effect among all employees a seniority rights system"); General Motors Corp. v. Unemployment Compensation Commn. 321 Mich. 724, 728 (reversing 321 Mich. 604 on rehearing); Henzel v. Cameron, 228 Ore. 452, 464-466 (all truck drivers, long line as well as terminal, interested in the result of a lockout); Cameron v. DeBoard, 230 Ore. 411, 416-417, 426-428; In re Deep River Timber Co. 8 Wash. 2d 179, 183-184 (interest by one of two unions in having an employee discharged, and the other one having him retained; but see Wicklund v. Commissioner of Unemployment Compensation, 18 Wash. 2d 206, 216-222). [Note 7]

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Cf. Outboard, Marine & Mfg. Co., Johnson Motors Div. v. Director of Labor, 403 Ill. 523, 536-539 (office workers not directly involved in factory workers' strike); Kieckhefer Container Co. v. Unemployment Compensation Commn. 125 N. J. L. 52, 54. Cf. also Department of Ind. Relations v. Drummond, 30 Ala. App. 78, 82. Although the extent of the pilots' interest may not have been very great, that interest was "direct" in so far as their seniority or their opportunities for work might be affected. Under principles stated in the Martineau case, we think that the burden was upon Wheeler to satisfy the review board that he was within the exemption from disqualification provided by Section 25 (b) (1). In the light of the evidence already quoted or referred to, and in the absence of evidence requiring the conclusion that the claimants had no interest in the outcome of the strike, the review board's decision was proper.

2. The board also held that Wheeler was not within the exemption (from disqualification to receive benefits) provided by Section 25 (b) (2), because he was "engaged in an integrated operation" with the strikers and was, accordingly, to be regarded as in the same "class" with the strikers. The board thus apparently gave to the word "class" a broader interpretation than that normally attached to the word "grade" (see Section 25 [b] [2], fn. 4, supra) and concluded that pilots and flight engineers operating in aircraft cockpits as an integrated team constituted a single class. The board's decision was thus consistent with cases in other jurisdictions, [Note 8] which have in general reached the conclusion that where the claimants, although not precisely comparable in work status to strikers, had duties closely related to

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the same manufacturing process as that in which the strikers were engaged, the claimants were not freed from disqualification by exemption provisions similar to Section 25 (b) (2). The question is novel in Massachusetts. See the brief reference to Section 25 (b) (2) in the Martineau case, 329 Mass. 44, 50. Because Wheeler has not shown that he was within the exemption provided by Section 25 (b) (1), there is now no occasion for us to determine whether he has also failed to bring himself within the exemption from disqualification provided by Section 25 (b) (2).

The decision of the District Court affirming the decision of the board of review is affirmed.

So ordered.