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Employment Development Department
Employment Development Department

Trade Dispute TD 420

Lifting of Trade Dispute Disqualification

A. Trade Dispute Not in Active Process

Section 1262 provides as follows:

"An individual is not eligible for unemployment compensation benefits, and no such benefit shall be payable to him, if he left his work because of a trade dispute. Such individual shall remain ineligible for the period during which he continues out of work by reason of the fact that the trade dispute is still in active progress in the establishment in which he was employed."

In Benefit Decision 4838, the Board considered the eligibility of a claimant who was held to have left her job due to a trade dispute, and set forth the policy on ending a trade dispute disqualification when the dispute is no longer in active progress. The Board said:

"If we determine that the trade dispute in which the employer and the claimant’s union were involved was no employer and the claimant’s union were involved was no longer in active progress, it follows that the disqualification is no longer in order. The record indicates clearly that the strike was called off by the union on August 22, 1947, but it does not necessarily follow that the trade dispute ended on that date. This Board has previously held, without precisely defining the term, that the term "trade dispute" is broader than ’strike’ or ’lockout’.

It appears to be granted by the union that the trade dispute continued in existence after the picket line was removed. The union instituted unfair labor practice proceedings against the employer before the National Labor Relations Board. This clearly demonstrates that a dispute continued to exist. However, it is our conclusion that the dispute was no longer in active progress within the meaning of Section 56(a) (1262) when the picket line was removed and employees were free to return to work for the employer if they so chose. Although the claimant may have been personally unwilling to return to such work, this was due to her personal feelings and not because she was supporting the position of the union in its dispute with the employer. We deem the fact that the employer was placed on the union’s ’unfair list’ to be immaterial in our consideration of this question, since it has not been shown that this had any bearing on the claimant’s right or ability to work for the employer.

We hold, therefore, that the Referee properly removed the disqualification on the day following removal of the picket line, to-wit, August 23, 1947, since from that date the claimant’s unemployment was no longer due to the trade dispute continuing in active progress."

B. Trade Dispute Ended

A trade dispute is considered ended when it terminates by one of the following ways:

  1. By Settlement

    Once the employer and the employees come to an agreement over the disputed conditions of work, the trade dispute is ended. This is the most common method in which a trade dispute ends.

    It is not uncommon for an employer to allow the striking employees to return to work once the union membership has ratified the agreement although the contract has not yet been signed by the employer and union. It may take several weeks before the final language is drafted and signed. The trade dispute would be considered ended once the employer allows the striking employees to return to work.

  2. By Abandonment

    A trade dispute is considered ended when the striking employees abandon the dispute. The following factors should be considered in determining whether or not a trade dispute has been abandoned:

    • Picket lines have been removed
    • Union allows its members to return to work
    • Negotiations have stopped and no new negotiations are scheduled
    • No court action is pending
    • No NLRB charges are pending
  3. By Constructive Termination

    In constructive terminations, there is no real acts of volition by either the employer and/or the union to end the dispute, but because of some external event, there is justification to hold the trade dispute has ended. The following are examples:

    • Business sold
    • Plant destroyed
    • Court declares trade dispute illegal
    • Union decertified as result of NLRB election

C. Delayed Recall to Work After Agreement Reached

In some instances, the employer may not be able to immediately recall some or all of the employees when the agreement is reached due to reasons such as the time it takes to restart operations or because of reduced business caused by the trade dispute.

In West Foods, the employer contended that the employees should continue to be disqualified under Section 1262 after the date the agreement was reached through the date of recall. In this case, the employer’s mushroom plant was struck on August 30, 1976. Agreement was reached on September 6 and most workers were called back to work on September 7. Due to spoilage and disease in the mushroom greenhouses during the strike, some workers could not be put back to work until October. The employer argued those workers who could not be put back to work until October should be disqualified until then. The court held that the disqualification ended on September 7, stating that once the trade dispute ends, a striker is no longer ineligible under Section 1262.

In PB 89, however, the Appeals Board held that since the delay recalling the employees to work after the agreement was reached was caused by the employees participation in an illegal strike, the trade dispute disqualification was extended for two weeks after the strike ended, until maintenance was completed and the workers could be put back to work.