Bridgestone/Firestone v. Doherty

NO. 4-95-0920
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT

BRIDGESTONE/FIRESTONE, INC., ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. (No. 95-MR-18) ) Macon County
LYNN QUIGLEY DOHERTY, Director, ) Nos. 95MR18
and THE ILLINOIS DEPARTMENT OF ) 95MR88
EMPLOYMENT SECURITY, ) 95MR122
Defendants-Appellants, )
and )
BRIDGESTONE/FIRESTONE, INC., )
Plaintiff, )
v. (No. 95-MR-88) )
LYNN QUIGLEY DOHERTY, Director, )
ILLINOIS DEPARTMENT OF EMPLOYMENT )
SECURITY, and CARL B. BINDER, TERRY D. )
CRAWLEY, RANDY L. GORDON, BRUCE W. )
HALL, and RONALD G. MILES, )
Defendants, )
and )
BRIDGESTONE/FIRESTONE, INC., )
Plaintiff, )
v. (No. 95-MR-122) )
LYNN QUIGLEY DOHERTY, Director, )
ILLINOIS DEPARTMENT OF EMPLOYMENT ) Honorable
SECURITY, and FRED DURBIN, JR., ) John K. Greanias,
Defendants. ) Judge Presiding.
_________________________________________________________________

PRESIDING JUSTICE COOK delivered the opinion of the
court:
The 243 claimants in these consolidated cases applied
for and were awarded unemployment benefits by the Illinois
Department of Employment Security (Department). The Director of
the Department affirmed the award of benefits, finding that
claimants were not ineligible for unemployment benefits under
section 604 of the Illinois Unemployment Insurance Act (Act),
which deals with unemployment due to stoppage of work because ofa labor dispute. 820 ILCS 405/604 (West 1994). On adminis-
trative review, the circuit court of Macon County reversed the
Director's decision and remanded with directions. The Director
appeals, arguing the circuit court erred in ordering her to
determine whether claimants had undertaken interim employment in
good faith. We affirm, using different reasoning than did the
circuit court.
The 243 claimants were all at one time employed by
plaintiff Bridgestone/Firestone. Claimants went on strike on
July 12, 1994, and, as they acknowledge, thereby became ineli-
gible for unemployment benefits under section 604 of the Act.
See 820 ILCS 405/604 (West 1994). All claimants then obtained
interim employment which was eventually lost. There was evidence
the interim employment was, in many cases, of short duration,
lasting a few days or weeks. There was also evidence that some
claimants were employed by relatives, also for brief periods of
time. It was stipulated that all interim employment at issue
constituted "employment" as defined in section 206 of the Act
(820 ILCS 405/206 (West 1994)) and that all interim employers
were "employers" as defined in section 205 of the Act (820 ILCS
405/205 (West 1994)).
Relying on Dienes v. Holland, 78 Ill. 2d 8, 397 N.E.2d 1358 (1979), the Director found that any evidence of "bad faith"
on the part of claimants in securing interim employment was
irrelevant to the benefits determination and affirmed the bene-
fits awards made by the claims adjudicator. In a memorandum
judgment dated October 24, 1995, the circuit court reversed the
Director's ruling and remanded each claim to the Director to
determine whether the claimants' interim employment had been
taken in good faith. The circuit court based its decision on
Dienes but concluded the Director's interpretation of Dienes
would allow the evasion of section 604 "in cases in which the
interim work was intended to be short-lived and was purposefully
orchestrated to restore benefits."
Section 604 of the Act is one of several disqualifica-
tion provisions, which, if applicable to a claimant, make him
ineligible for receipt of unemployment benefits. See 820 ILCS
405/600 through 614 (West 1994). Section 604 of the Act general-
ly disqualifies those who are voluntarily unemployed as a result
of a labor dispute:
"An individual shall be ineligible for
benefits for any week with respect to which
it is found that his total or partial unem-
ployment is due to a stoppage of work which
exists because of a labor dispute at the
factory, establishment, or other premises at
which he is or was last employed." (Emphasis
added.) 820 ILCS 405/604 (West 1994).
The term "last employed" is not defined in this section, which
leaves open the question presented in this case and in Dienes:
at what point does employment subsequent to a labor dispute
"purge" the statutory disqualification of section 604 of the Act?
The claimants in Dienes were employees of Continental
Grain Company (Continental). On September 1, 1971, the claimants
went on strike. In November 1971, while still on strike and
without severing their relationships with Continental, the claim-
ants obtained employment with the Carey Grain Corporation (Ca-
rey). Each claimant worked full-time, and each believed he had
found a permanent position with Carey. Between December 25,
1971, and January 8, 1972, the claimants were laid off due to a
lack of work. The appellate court reversed a denial of benefits
based on section 604, and the supreme court affirmed. Dienes, 78 Ill. 2d at 10, 17, 397 N.E.2d at 1358, 1362.
In Dienes, the Director of Labor argued the employees
could not be considered "last employed" at Carey under section
604 of the Act because that relationship "was at best a temporary
or a stop-gap measure." Dienes, 78 Ill. 2d at 12, 397 N.E.2d at
1359. The Director further urged that "last employed" be inter-
preted to require a claimant to sever his relationship with his
previous employer prior to accepting other employment before the
disqualification of section 604 of the Act was removed. The
supreme court rejected these arguments and instead followed a
Michigan decision which accepted interim employment as sufficient
to purge a strike-related disqualification. Dienes, 78 Ill. 2d
at 14, 397 N.E.2d at 1360, citing Great Lakes Steel Corp. v.
Employment Security Comm'n, 6 Mich. App. 656, 665, 150 N.W.2d 547, 551 (1967). Accordingly, it was not necessary that the
employee completely sever his relationship with the first employ-
er, or that he intended in good faith to obtain permanent employ-
ment with the second employer, or that he be regularly or perma-
nently employed with the second employer. Dienes, 78 Ill. 2d at
13, 397 N.E.2d at 1360.
After rejecting the definition of "last employed" urged
by the Director, the Dienes court concluded by cautioning:
"It is appropriate to observe, however,
that we are, of course, affirming the appel-
late court's judgment on the circumstances
involved. We need not consider here whether
every succeeding or 'last' employment, what-
ever the circumstances, will qualify a claim-
ant for unemployment benefits." Dienes, 78 Ill. 2d at 17, 397 N.E.2d at 1362.
According to the Director, Dienes holds that any
subsequent employment, regardless of duration or the claimant's
motive in securing the employment, should remove the disqualifi-
cation of section 604. According to plaintiff, Dienes holds that
only where a claimant seeks other employment in good faith should
the disqualification of section 604 be removed. The circuit
court agreed with plaintiff's interpretation of Dienes.
We cannot accept the interpretation of Dienes urged by
the Director. The supreme court in Dienes did not broadly hold
that any employment temporally removed from the previous employ-
ment suffices to remove the section 604 disqualification. The
claimants in Dienes all believed their new jobs would have been
permanent had they not been laid off for lack of work. The
claimants all worked full-time for at least one month prior to
being released. Dienes, 78 Ill. 2d at 10, 397 N.E.2d at 1358.
Not only was the good faith of the claimants in Dienes not at
issue, but the only proposition considered (and rejected) in
Dienes was that a claimant must sever all ties with his previous
employer as a condition precedent to removal of the section 604
disqualification. See Dienes, 78 Ill. 2d at 15-16, 397 N.E.2d at
1361. It is unlikely our legislature intended to enact a statute
which could be easily evaded by obtaining employment which was,
in the words of the circuit court, "purposefully orchestrated to
restore benefits."
Interpretation of "last in time" as imposing no dura-
tional or good-faith requirement has been rejected by a majority
of courts in this country. See Annotation, Unemployment Compen-
sation: Labor Dispute Disqualification as Applicable to Striking
Employee Who Is Laid Off Subsequent Employment During Strike
Period, 61 A.L.R.3d 766, 770 (1975) (noting that "[m]ost of the
courts which have considered the question *** have rejected the
notion that 'last' was intended by the legislature to mean 'last
in time,' and have expressed the opinion that only permanent,
full-time employment can serve to terminate the statutory dis-
qualification applicable to a striking worker"); 81 C.J.S. Social
Security 242, at 485 (1977) ("Where new employment, obtained
after leaving a former employment because of a labor dispute, is
undertaken in good faith and with an intent to continue therein
on a permanent basis or for an indefinite period of time, such
new employment is sufficient to terminate disqualification for
benefits for any week with respect to which unemployment is due
to a labor dispute"). The supreme court in Dienes noted that the
Illinois unemployment statute, as it then existed, was unlike
similar statutes in other states in that it did not "set a
required length of employment with an interim employer in order
to avoid disqualification under section 604." Dienes, 78 Ill. 2d
at 14-15, 397 N.E.2d at 1361.
An important section, section 1502.1 of the Act, has
been added to the Act since Dienes. See 820 ILCS 405/1502.1
(West 1994). That section sets out statutory guidelines for
determining which employer will be charged financially for an
unemployed claimant's benefits. 820 ILCS 405/1502.1 (West 1994).
Section 1502.1(E) of the Act specifically defines the term "last
employer"--that employer which is chargeable for unemployment
benefits, as determined pursuant to the earlier subsections of
section 1502.1. 820 ILCS 405/1502.1(E) (West 1994). Until a
claimant becomes employed to the extent that his new employer
becomes chargeable for benefits (basically 30 days), the claimant
remains "last employed" with (and barred from receiving benefits
from) the employer with whom he was originally embroiled in a
labor dispute. 820 ILCS 405/1502.1(A)(3)(a) (West 1994).
Section 1502.1 of the Act accordingly now sets out a
required length of employment before disqualification under
section 604 is ended. See Dienes, 78 Ill. 2d at 14-15, 397 N.E.2d at 1361. Section 1502.1 was added by Public Act 85-956 in
1988. See Pub. Act 85-956, 1, eff. January 1, 1988 (1987 Ill.
Laws 4191, 4226). Section 1502.1 does more than end the dis-
qualification. In Dienes, the interim employer, Carey, stood to
lose nothing from the court's ruling. Either no benefits would
be paid out, or, if benefits were due, Continental, not Carey,
was the chargeable employer under the Act as it existed then.
See Dienes v. Holland, 64 Ill. App. 3d 109, 110, 380 N.E.2d 1156,
1157 (1978) (noting that the Director's decision had been in
favor of Continental). Section 1502.1 of the Act changes all
this and shifts the potential economic consequences to the
interim employer.
The Director argues section 1502.1 of the Act should
not be used to determine where a claimant was "last employed,"
since section 1502.1(E) of the Act states that it defines "last
employer" for the purposes of sections 302, 409, 701, 1403, 1404,
1405, and 1508.1 (820 ILCS 405/302, 409, 701, 1403, 1404, 1405,
1508.1 (West 1994)). See 820 ILCS 405/1502.1(E) (West 1994).
Those sections all contain internal cross-references to section
1502.1 of the Act as well. While we are troubled by the fact
that section 604 of the Act is not listed in section 1502.1(E),
we are not persuaded that fact alone forecloses application of
section 1502.1(A)(3)(a) of the Act in this case. There is no
indication this list was intended to be exclusive. Moreover,
adopting a definition of "last employer" other than that con-
tained in section 1502.1(E) of the Act would result in two
contradictory definitions of the same term within the same Act.
Where the same or substantially the same words or phrases appear
in different parts of a statute, they should be given a consis-
tent meaning unless a contrary legislative intent is clearly ex-
pressed. People v. Lutz, 73 Ill. 2d 204, 212, 383 N.E.2d 171, 174 (1978); County of Coles v. Property Tax Appeal Board, 275
Ill. App. 3d 945, 948-49, 657 N.E.2d 673, 676 (1995). We find no
evidence the legislature intended the term "last employed" in
section 604 of the Act to have a different meaning than the term
"last employer" as defined in section 1502.1(E) of the Act. 802
ILCS 405/604, 1502.1(E) (West 1994).
The circuit court was justifiably wary of the interpre-
tation of Dienes urged by the Director, as that interpretation
would open the door for abuse by allowing circumvention of the
section 604 bar. The Dienes court warned it was not holding that
"every succeeding or 'last' employment, whatever the circum-
stances, will qualify a claimant for unemployment benefits."
Dienes, 78 Ill. 2d at 17, 397 N.E.2d at 1362. Section 1502.1 of
the Act makes collusion more difficult in cases such as this,
since an employee who was unemployed as a result of a labor
dispute must work at a subsequent employer for 30 days to
requalify for benefits and must, of course, be terminated by his
second employer--voluntarily leaving the second employer will not
entitle him to benefits. See 820 ILCS 405/1502.1(A)(3)(b) (West
1994). The possibility of collusion is also minimized by the
fact the Act attaches economic consequences to an interim
employer's decision to discharge an individual who was previously
disqualified from receiving benefits as a result of a labor
dispute. If the duration of the subsequent employment meets the
requisites of section 1502.1 of the Act, the subsequent employer
becomes financially chargeable for all benefits in the event the
employee is laid off. (We asked the parties at oral argument
whether there would be any economic harm to the original employer
where subsequent employment satisfies the 30-day requirement, and
the parties stated there would be none.)
Section 1502.1 of the Act provides an objective,
bright-line method of determining whether an individual has
requalified for unemployment benefits and avoids the subjectivity
inherent in any type of "good-faith" inquiry. Since we have
found a definition of "last employer" within the Act itself, we
have not "add[ed] any additional conditions to the [Act] in order
to qualify a claimant for benefits." See Dienes, 78 Ill. 2d at
14, 397 N.E.2d at 1360.
We remand this case to the Director to determine
whether the interim employers here qualify as "last employers" as
defined in section 1502.1 of the Act. If such employment was
sufficient to qualify claimants for benefits, claimants should be
awarded benefits, with the interim employer as the chargeable
employer. We have described the requirement of section 1502.1 of
the Act loosely as a 30-day requirement. There are additional
considerations involved in such determinations (involving base
periods, nonconsecutive days, wage minimums, et cetera), but the
administrative rules provide detailed guidance and examples as to
when one becomes a claimant's "last employer" under the Act. See
56 Ill. Adm. Code 2765.325 through 2765.329 (1996).
For the reasons stated, we affirm the judgment of the
circuit court and remand to the Director with directions.
Affirmed and remanded.
STEIGMANN and KNECHT, JJ., concur.