IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

September 2021 Term

_______________

No. 20

- 0486

_______________

CONSTELLIUM ROLLED PRODUCTS

RAVENSWOOD, LLC,

Petitioner Below, Petitioner

v.

EARL B. COOPER, et al., and

WORKFORCE WEST VIRGINIA BOARD OF REVIEW,

Respondents Below, Respondent

____________________________________________________________

Appeal from the Circuit Court of Kanawha County

The Honorable Jennifer F. Bailey, Judge

Civil Action Nos. 13

- AA

- 44 and 13

- AA

- 45

REVERSED IN PART AND AFFIRMED IN PART

AND REMANDED

____________________________________________________________

Submitted: September 15, 2021

Filed: November 5

, 2021

Ancil G. Ramey, Esq.

Christopher L. Slaughter, Esq.

Steptoe & Johnson PLLC

Huntington, West Virginia

Rodney L. Bean, Esq.

Steptoe & Johnson PLLC

Morgantown

, West Virginia Thomas P. Maroney, Esq.

Patrick K. Maroney, Esq.

Maroney, Williams, Weaver & Pancake

PLLC

Charleston, West Virginia

Counsel for Respondents

- Claimants 

### FILED

November 5, 2021

released at 3:00 p.m.

EDYTHE NASH GAISER , CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIAJUSTICE WALKER delivered the Opinion of the Court.

JUSTICE WOOTON dissent s and reserve s the right to file a separate opinion.

Counsel for Petitioner Patrick Morrisey

Attorney General

Charleston, West Virginia

Counsel for Respondent Workforce West

Virginia Board of Reviewi SYLLABUS BY THE COURT

1. “ The findings of fact of the Board of Review of the West Virginia

Department of Employment Security are entitled to substantial deference unless a

reviewing court believes the findings are clearly wrong. If the question on review is one

purely of law, no deference is given and the standard of judicial review by the court is de

novo. ” Syllabus Point 3, Adkins v. Gatson

, 192 W. Va. 561, 453 S.E.2d 395 (1994).

2. “ The term ‘ stoppage of work ’

, within the meaning of the

unemployment compensation statutes of this state refers to the employer ’ s operations rather

than to a mere cessation of employment by claimants of benefits under the provisions of

such statutes; and, in order that employees may be disqualified from receiving

unemployment compensation benefits because of ‘ a stoppage of work ’ resulting from a

labor dispute, it must appear that there has resulted a substantial curtailment of the

employer ’ s normal operations. ” Syllabus Point 2, Cumberl and & Allegheny Gas Co. v.

Hatcher

, 147 W. Va. 630, 130 S.E.2d 115 (1963), overruled on other grounds by Lee

Norse Co. v. Rutledge

, 170 W. Va. 162, 291 S.E.2d 477 (1982).

3. Syllabus Point 1 of Homer Laughlin China Co. v. Hix

, 128 W. Va.

613, 37 S.E.2d 649 (1946)

, does not require an employer to show at least a 75

- percent

curtailment in its normal operations in order to establish a “ work stoppage, ” for purposes

of West Virginia Code § 21A

- 6

- 3(4) (2012).ii 4

. “ W.Va.Code, 21A

– 6

– 3(4) (1984), disqualifies employees from

receiving unemployment compensation benefits if they are involved in ‘ a work stoppage

incident to a labor dispute, ’ unless they can satisfy one of three statutory exceptions: (1)

the employees are ‘ required to accept wages, hours or conditions of employment

substantially less favorable than those prevailing for similar work in the locality ’ ; (2) the

employees ‘ are denied the right of collective bargaining under generally prevailing

conditions ’ ; or (3) ‘ an employer shut s down his plant or operation or dismisses his

employees in order to force wage reduction, changes in hours or working conditions. ’ ”

Syllabus Point 1, Roberts v. Gatson

, 182 W. Va. 764, 392 S.E.2d 204 (1990).

5

. “ A refusal to engage in the collective bargaining process or to

negotiate on those mandatory subjects that traditionally form the basis of the collective

bargaining agreement so frustrates the process as to constitute a denial of the right of

collective bargaining under W. Va.Code, 21A

– 6

– 3(4) (1984). ” Syllabus Point 2, Roberts

v. Gatson

, 182 W. Va. 764, 392 S.E.2d 204 (1990).1 WALKER, Justice:

In 2012, Constellium Rolled Products Ravenswood, LLC employed 860

workers at its production plant

, 680 of whom were represented by United Steel w orkers

L ocal 5668

. In the spring and summer of that year, representatives of Constellium and the

Union met twenty

- six times to negotiate a new collective bargaining agreement. By

August 5, 2012, two contract extensions had come and gone and Constellium and the Union

still could not come to terms. So

, Earl B. Cooper and other Union members employed at

the plant (Claimants) stopped working and went on strike. The strike ended a few weeks

later and Claimants applied for unemployment compensation benefits

. Constellium

contested the applications under West Virginia Code § 21A

- 6

- 3(4) (2012) (labor dispute

provision). 1 A Labor Dispute Tribunal decided that Claimants were not dis qualified for

benefits under that provision

. The Board of Review affirmed that decision, and the Circuit

Court of Kanawha County affirmed the Board.

Constellium now argues that the lower tribunals erroneously held that

Claimants were not disqualified for unemployment compensation benefits under the labor

dispute provision. We agree

. The facts found by the lower tribunals clearly demonstrate

that a stoppage of work occurred at Constellium ’ s plant during the 2012 labor dispute, and

1 We apply the version of the statute in effect at the time of the strike . The statutory

language is set out, below, in section III.A. The Legislature rewrote the labor dispute

provision in 2017. 2017 W. Va. Acts 245 (eff. July 2, 2017).2 those tribunals clearly erred by concluding otherwise. And

, we find no error in the lower

tribunals ’ conclusions that Claimants have not satisfied the exceptions to disqualification

under the labor dispute provision and that the provision is not preempted by federal labor

law

. For those reason s

, we reverse in part and affirm in part the Circuit Court of Kanawha

County ’ s order of June 12, 2020

, and remand this case for entry of an order denying

Claimants ’ applications for unemployment compensation benefits.

FACTUAL AND PROCEDURAL H ISTORY

Constellium produce d aluminum plate and coil products at its Ravenswood

plant in 2012

. Plate is used primarily in the aerospace industry while the coil goes to a

more diverse customer base

. T he U nion represented the hourly workers at the Ravenswood

plant

, who then accounted for approximately 80 percent of the Ravenswood plant ’ s

workforce (680 employees out of 860

, total )

.

In 2010, the U nion and Constellium had entered into a two

- year collective

bargaining agreement

. That agreement was set to expire in July 2012, 2 so the Union and

Constellium began negotiations for a new agreement in May 2012 and met over twenty

times between May and August 2012. A dispute over healthcare pervaded the negotiation

of economic contract terms. 3 Constellium worked to walk back the first

- dollar health

2 The 2010 agreement was extended twice after its expiration in July 2012.

3 “ Economic ” terms include health care, wages, bonuses, show allowances, extra

vacation days, and holidays.3 coverage workers had enjoyed under the 2010 agreement and to put a medical necessity

clause into the agreement. 4 The Union opposed both changes

. Constellium and the U nion

could not come to terms, so union members went on strike at midnight on August 5, 2012

. 5

Constellium continued to operate the plant during the strike by shift ing

approximately 180 salar ied employees from their usual assignments to bargaining unit

work

. Those salar ied employees performed bargaining unit jobs six or seven days a week

during the strike, in two, twelve

- hour shifts

, so that Constellium continued to produce and

ship plate and coil, and generate revenue during the strike, although at levels far below

normal. Negotiations on health and welfare benefits continued during the strike.

Eventually, Constellium proposed revisions to the medical necessity clause that found

traction

. Union members accepted the revised proposal on September 20, 2012

, and

returned to work four days later.

Claimants applied for unemployment compensation benefits for the period

of the labor dispute. Constellium contested the applications, and the dispute was re ferred

4 The 2010 agreement did not contain the medical necessity clause but the third

party administrator of Constellium ’ s health plan implemented the requirement, an yway.

Bargaining unit members successfully grieved the denial of medical treatment due to the

medical necessity requirement while the 2010 agreement was in effect.

5 The parties do not contest that the strike is a “ labor dispute ” for purposes of

§ 21A

- 6

- 3(4).4 to a three

- member Labor Dispute Tribunal. 6 During the pre

- hearing conference, the

Tribunal granted

- in

- part Constellium ’ s motion to quash a subpoena duces tecum that

Claimants had previously caused to be served upon representatives of Constellium. 7 That

subpoena sought

, among other things, “ All communications, memos, emails, text

messages, videos and pictures between [ Constellium ] employees or its agents, including [a

Constellium parent entity]

, regarding union members of [ Constellium ], regarding the labor

dispute between [the Union ] and [Constellium]. ” 8 The Tribunal found that request plus

two similar ones to be “ vague, general and unnecessarily cumbersome. ”

6 See W. Va. Code § 21 A

- 7

- 4(c) (1994) (directing deputy to investigate all claims

for unemployment compensation benefits and requiring that, “ [ i ] f it appears from the

deputy ’ s investigation and from all of the information before him, that a claim rel ates to a

labor dispute or to a disqualification under [§ 21A

- 6

- 3(4)], the claim shall be transferred to

the board for full hearing and initial determination by an appeal tribunal ” )

.

7 See W. Va. Code § 21A

- 4

- 12 (1936) ( “ The board, appeal tribunal, or exam iner

shall have the power to issue subpoenas for the production of persons and papers in all

proceedings within their jurisdiction. ” ).

8 Specifically, Claimants sought production of:

1. All communications, memos, emails, text messages,

videos and pictures between Constellium Rolled Products

Ravenswood, LLC employees or its agents, including

AFIMAC, regarding union members of Constellium Rolled

Products Ravenswood, LLC, regarding the labor dispute

between United Steelworkers (“USW”) Local Union 5668 and

Constellium Rolled Products Ravenswood, LLC.

2. All internal communications, memos, emails, text

messages or videos between Constellium Rolled Products

Ravenswood, LLC between union and non

- union employees

regarding contract negotiations, replacement workers, or any5 The Tribunal conducted a two

- day evidentiary hearing in early November

2012

. 9 Constellium presented testimony and documents to support its position that a

stoppage of work had occurred at the Ravenswood plant during the August

- September

2012 labor dispute

. 10 Claimants offered evidence to support their position that Constellium

had denied them their right of collective bargaining by insisting on including the medical

other information regarding the formation of contract

proposals for a collective bargaining agreement between

Constellium Rolled Products Ravenswood, LLC and USW

Local 5668.

3. All communications, memos, emails, text messages or

videos betw een Constellium Rolled Products Ravenswood,

LLC employees and its agents or any of its affiliates, and

Appollo Global Management, LLC, or any of its affiliates,

including Appollo Investment Fund VII, LP, Rio Tinto, Funds

Strategique d’Investment FSI, Const ellium France SAS,

Constellium Switzerland AG, and other companies, affiliates

or agents, regarding the proposed collective bargaining

agreement between Constellium Rolled Products Ravenswood,

LLC and USW Local 5668, including the use of replacement

worker s.

9 See W. Va. Code § 21A

- 7

- 7a (1972) (stating that “ [ u ] pon transfer to the board of

a case relating to a labor dispute or to disqualification under [§ 21A

- 6

- 3(4)], for hearing

and initial determination by an appeal tribunal, the parties shall be entitled to a full and

complete hearing and opportunity to present evidence before an appeal tribunal ” )

.

10 See Peery v. Rutledge , 177 W. Va. 548, 552, 355 S.E.2d 41, 45 (1987) (stating

general rule that “ the burden of persuasion is upon the former employer to demo nstrate by

the preponderance of the evidence that the claimant ’ s conduct falls within a disqualifying

provision of the unemployment compensation statute ” ).6 necessity clause in the 2012 agreement and by putting leaders of a parent company located

in Paris, France, in charge of bargaining on economic terms. 11

On December 14, 2012, the Tribunal decided that the Claimants were not

disqualified for unemployment compensation benefits because a stoppage of work had not

occurred at Constellium ’ s Ravenswood plant due to the strike

. The Tribunal found that

operations had continued at the plant during the strike

, albeit by the efforts of salaried

employees working bargaining unit jobs

. The Tribunal found that decreases in production,

product shipped, and revenue did not indicate that Constellium ’ s normal operations had

been “ substantially curtailed, ” so that no stoppage of work had occurred during the labor

dispute and Claimants were not disqualified for unemployment compensation benefits

.

T he Tribunal then analyzed and rejected the parties ’ remaining arguments for purposes of

appellate review, including arguments put forth by Claimants to counter their

disqualification from benefits

, had the Tribunal found in Constellium ’ s favor

. The Board

of Review affirmed the Tribunal ’ s decision in February 2013. The Circuit Court of

11 See W. Va. Code § 21A

- 6

- 3(4) (2012) (setting out four exceptions to

disqualification for unemploym ent compensation benefits under labor dispute provision)

. Below, Claimants also asserted that they had been required to accept terms of employment

substantially less favorable than those prevalent in the area. Claimants do not pursue that

theory on appea l.7 Kanawha County entered an order affirming the Board ’ s order affirming the Tribunal ’ s

decision on June 12, 2020. 12

STANDARD OF R EVIEW

Our standard of review of decisions by the Board of Review is well

- settled:

The findings of fact of the Board of Review of the West

Virginia Department of Employment Security are entitled to

substantial deference unless a reviewing court believes the

findings are clearly wrong. If the question on review is one

purely of law, no deference is given and the standard of judicial

review by the court is de novo

. [ 13 ]

DISCUSSION

W e first consider Constellium ’ s appeal of the lower tribunals ’ conclusion

that Claimants are not disqualified for unemployment compensation benefits because a

stoppage of work did not occur at the Ravenswood plant in 2012. We then take up

12 In September 2013, the circuit court consolidated Constellium ’ s appeal and

Claimants ’ “ limited appeal ” of the Board of Review ’ s decision into a single proceeding

. Delays plagued t he consolidated cases

. Briefing before the circuit court concluded in

December 2013. Claimants filed proposed findings of fact and conclusions of law with

their reply

. Constellium did not supply the court with a proposed order until 2015. In

2019, Constellium petitioned thi s Court for relief in mandamus to compel the circuit court

to rule on the parties ’ appeal and “ limited appeal. ” This Court issued a rule to show cause

in January 2020. The circuit court entered its final order affirming the Board of Review ’ s

order adopti ng the findings of the Labor Dispute Tribunal on June 12, 2020. This Court

then dismissed Constellium ’ s petition for mandamus relief as moot later tha t month

.

13 Syl. Pt. 3, Adkins v. Gatson , 192 W. Va. 561, 453 S.E.2d 395 (1994).8 Claimants ’ cross

- appeal

. Finally, Constellium ’ s federal preemption argument is briefly

considered.

A. Disqualification for B enefits

West Virginia Code § 21A

- 6

- 3(4) (2012) controls the determination of

whether Claimants were properly paid unemployment compensation benefits for the period

of the 2012 strike

. Under this statute, also called the labor dispute provision, a claimant

“ is disqualified for benefits

. . . [f]or a week in which his or her total or partial

unemployment is due to a stoppage of work which exists because of a labor dispute at the

factory, establishment or other premises at which he or she was last employed. ” 14 This

Court has explained that for the purposes of the labor dispute provision, a “ stoppage of

work ” does not mean that the lights must be turned off and the doors to the factory locked

to trigger disqualification. Instead, the analysis is fact specific and turns on whether there

is a substantial curtailment of normal operations:

[t]he term “ stoppage of work ”

, within the meaning of

the unemployment compensation statutes of this state refers to

the employer ’ s operations rather than to a mere cessation of

employment by claimants of benefits under the provisions of

such statutes; and, in order that employees may be disqualified

from receiving unemployment compensation benefits because

of ‘ a stoppage of work ’ resulting from a labor dispute, it must

14 W. Va. Code § 21A

- 6

- 3(4) (2012) (e mphasis added )

.9 appear that there has resulted a substantial curtailment of the

employer ’ s normal operations

. [ 15 ]

“ A determination of the existence or nonexistence of a stoppage of work in a case of this

nature must necessarily depend upon the facts of each case. ” 16

Constellium argues that the Tribunal erroneously found that a stoppage of

work did not occur at the Ravenswood plant during the 2012 labor dispute. Constellium

objects that the Board (1) ignored the fact that salaried workers reassigned to bargaining

unit jobs were unable to complete their regular, assigned tasks during the labor dispute; (2)

mismeasured the impact of the strike upon Constellium ’ s normal operations by comparing

output during the strike to an incomparable, historical period; and (3) failed to account for

15 Syl. Pt. 2, Cumberland & Allegheny Gas Co. v. Hatcher , 147 W. Va. 630, 130

S.E.2d 115 (1963) (emphasis added)

, overruled on other grounds by Lee

- Norse Co. v. Rutledge , 170 W. Va. 162, 291 S.E.2d 477 (1982).

As noted above, the Legislature rewrote the labor dispute provision in 2017. In part,

the 2017 amendments to W. Va. Code § 21A

- 6

- 3(4) provide that,

Upon the determination of the facts by the

commissioner, an individual is disqualified for benefits . . .

[f]or any week or portion thereof in which he or she did not

work as a result of: (a) A strike or other bona fide labor dispute

which caused him or her to leave or lose his or her

employment; (b) . . . the operation of a facility by non

- striking

employees of the co mpany, contractors or other personnel is

not a reason to grant employees of the company on strike

unemployment compensation benefit payments.

The Legislature made two stylistic changes to the labor dispute provision in 2020. 2020

W. Va. Acts 203.

16 Cumber land & Allegheny Gas Co.

, 147 W. Va. at 639, 130 S.E.2d at 121.10 those days during the months of August and September 2012 when the plant ran at full

capacity. Constellium also argues that even if one accepts the Board ’ s arguably flawed

findings as to Constellium ’ s output levels during the 2012 labor dispute, those findings still

show that the labor dispute substantially curtailed its normal operations

.

Claimants respond that the meaning of “ work stoppage ” in West Virginia is

settled

, and that this Court has held that a substantial curtailment of operations would be in

the 75

- to 80

- percent range. Claimants contend that the Tribunal carefully and thoroughly

interpreted the production, shipping, and revenue figures offered by both parties to reach

its factual findings regarding the impact of the labor dispute on Constellium ’ s normal

operations. According to Claimants, those findings do not support a conclusion that

Constellium ’ s normal operations were substantially curtailed due to the labor dispute

because they fall well short of the 75

- to 80

- percent threshold adopted by this Court.

Finally, Claimants attempt to distinguish out

- of

- state cases cited by Constellium in support

of its argument that the Tribunal improperly ignored evidence regarding the impact of the

labor dispute upon non

- output metrics of Constellium ’ s performance during the strike.

(1) The Tribunal ’ s Calculations

We begin with Constellium ’ s contention that the Tribunal erroneously

calculat ed the rates at which the 2012 strike impacted the Company ’ s “ normal operations. ”

The Tribunal used prestrike rates of production, shipping, and revenues to describe

Constellium ’ s normal operations. So, broadly, the Tribunal compared Constellium ’ s rates11 of production, shipping, and revenues during the strike to those before the strike to

determine the rate at which the strike curtailed Constellium ’ s normal operations.

Constellium argues that the Tribunal erred when it relied, in part, on Claimants ’ proposed

lookback period of roughly two

- and

- a

- half years to establish Constellium ’ s normal

operations

, which, in turn resulted in the erroneous determination of the impact of the strike

upon th em.

Constellium asserts that the appropriate period of comparison was February

to July 2012. Those were “ up ” months, according to Constellium, and it expected strike

months August and September 2012 to be “ up ” months

, too. Constellium argues that the

Tribunal was bound to compare up months to up months, so comparison of August and

September 2012 rates of production, shipping, and revenues to those rates in the five

months before provides the accurate rate of curtailment of its operations due to the strike.

F aced with this argument

, the circuit court found that it was “ not clearly

wrong or unreasonable to conclude that a longer, more comprehensive time frame captures

a more reliable picture of what is ‘ normal business ’ and more accurately reflects the

cyclical nature of Constellium Ravenswood ’ s business. ” Like the circuit court, we see

nothing clearly wrong in the Tribunal ’ s effort to account for the admitted variances in

Constellium ’ s business environment by relying, in part, on a lengthier timeframe to assess

the company ’ s normal operations. The Tribunal heard testimony that supported

Constellium ’ s position that Claimants ’ lengthier lookback period was incomparable to the12 company ’ s anticipated performance in August and September 2012. But that same

testimony could also have led the Tribunal to conclude that Constellium ’ s five

- month

comparison period was too short to represent the variability of the company ’ s operations.

On this issue, we are reluctant to second

- guess the Tribunal ’ s assessment of the testimony

and its choice to rely in part on Claimants ’ lengthier lookback period to determine

Constellium ’ s normal operations.

We say “ in part ” because as the Tribunal explained, “ [t]o calculate the

average monthly percentages of [Constellium ’ s] norm al business activity, [it] gave similar

weight to the claimant ’ s recommended time period of January 2010/July 2012 and the

employer ’ s recommended time period of March 2012/July 2012. ” The Tribunal did not

adopt Claimants ’ position to the exclusion of Constellium ’ s; it considered both

. Again, we

see nothing clearly wrong in that approach and for the same reason articulated by the circuit

court:

[T]he ALJ Tribunal averaged the output values during the time

frames proposed by both parties to determine an average

between the two positions. While there may be merit in

choosing a different time frame for other types of comparisons,

the time frames chose n by the ALJ Tribunal for comparison to

the issues raised in these proceedings were reasonable, and

likewise took into account the positions of both parties.

Constellium also argues that the Tribunal erred by failing to account for the

eleven, non

- strike days during the months of August and September 2012 during which

Constellium operated at full capacity (approximately 18 percent of the days in those13 months)

. Had that step been taken, Constellium asserts, its comparative rates of strike

time production, shipping, and revenue would have been lower (and more accurate) than

those ultimately found by the Tribunal

. Again, w e see nothing clearly wrong in the

Tribunal ’ s calculation of Constellium ’ s performance during the strike at the month level,

rather than day

- by

- day. As Constellium acknowledges, daily output metrics were not

available at the administrative hearing. The Tribunal declined to approximate the daily

performance metrics for August and September

— to, in its words, “ extrapolate, assume,

estimate and guess the amount, difference, and significanc e of the strike and non

- strike

business activity in the August/September 2012 period [

. ] ” T here are multiple ways the

Tribunal could have sliced and diced the month

- level measurements to arrive at daily

output levels. The circuit court outlines one approach in its order, Constellium advocates

a different one its brief, and others are certainly available

. We do not fault the Tribunal for

staying out of the fray, given the numerous possible approaches. Ultimately, we cannot

say that the Tribunal ’ s calculations are clearly wrong, so we leave them alone.

(2) Substantial Curtailment

Two Constellium arguments remain : that the Tribunal overlooked the

curtailment of non

- output related activities during the strike 17 and that even the Tribunal ’ s

17 Given the ensuing analysis of the Tribunal’s finding of no work stoppage, we do

not address Constellium’s first assignment of error

— that contrary to the Tribunal’s order,

a stoppage of work did occur during the 2012 strike because the labor dispute affect ed

nearly 80 percent of the company’s employees and Constellium’s salaried employees were

unable to complete their own, regularly assigned tasks during the strike because they were

reassigned to bargaining unit positions.14 erroneously calculated output measurements show a substantial curtailment of

Constellium ’ s normal operations due to the 2012 labor dispute. Claimants respond that the

law regarding substantial curtailment is well

- settled

. Cumberland & Allegheny Gas Co. v.

Hatcher 18 and Homer Laughlin China Co. v. Hix

, 19 they represent, establish a rule that an

employer demonstrates substantial curtailment by showing a 75 to 80 percent decrease in

output

, and Constellium did not do that, here.

We first dispel the notion that Cumberland & Allegheny and Homer Laughlin

establish that an employer ’ s normal operations must be curtailed by at least 75 percent to

establish a stoppage of work under § 21A

- 6

- 3(4). To be clear: Cumberland & Allegheny

and Homer Laughlin do not establish a 75

- percent threshold. In Cumberland & Allegheny

,

this Court considered whether a gas utility ’ s normal operations were substantially curtailed

when 80 percent of the utility ’ s employees went on strike but the amount of gas supplied

and sold by the utility did not fall. 20 This Court found that the utility ’ s normal operations

were not substantially curtailed due to the labor dispute, apparently based on the utility ’ s

steady production and in spite of the fact that only 20 percent of the workforce remained

on the job

. 21

18 Cumberland & Allegheny , 147 W. V a. at 630, 130 S.E.2d at 115.

19 Homer Laughlin China Co. v. Hix , 128 W. Va. 613, 37 S.E.2d 649 (1946).

20 Cumberland & Allegheny

, 147 W. Va. at 636, 638, 130 S.E.2d at 119

.

21 Id . at 639, 643

− 44, 130 S.E.2d at 123

.15 Notably, in Cumberland & Allegheny this Court did not originate a syllabus

point enshrin ing an 80

- percent reduction in an employer ’ s normal operations as a

substantial curtail ment o f those operations. Instea d, we held that “ in order that employees

may be disqualified from receiving unemployment compensation benefits because of ‘ a

stoppage of work ’ resulting from a labor dispute, it must appear that there has resulted a

substantial curtailment of the employer ’ s normal operations, ” and left it at that. 22

Homer Laughlin v. Hix is not a 75

- percent silver bullet

, either

. In Homer

Laughlin

, this Court held that,

A strike, by employees of the operator of a factory,

which results in curtailment to the extent of approximately

seventy

- five per cent of the production of one of its

departments, and arises from breach of a wage contract by the

striking employees, creates a stoppage of work which exists

because of a labor dispute, within the meaning of the statute,

Subsection 4, Section 4, Article 6, Chapter 76, Acts of the

Legislature, 1943. [ 23 ]

T hat syllabus point does not say that only a 75

- percent curtailment of

production establishes a stoppage of work

, an important distinction that left space for this

directive seventeen years later in Cumberland & Allegheny : “ [a] determination of the

existence or nonexistence of a stoppage of work in a case of this nature must necessarily

22 Syl. Pt. 2, in part, id . at 630, 130 S.E. 2d at 115.

23 Syl. Pt. 1, Homer Laughlin , 128 W. Va. at 613, 37 S.E.2d at 649.16 depend upon the facts of each case

. ” 24 So, t o put any confusion to rest

, we now hold that

Syllabus Point 1 of Homer Laughlin China Co. v. Hix

, 128 W. Va. 613, 37 S.E.2d 649

(1946)

, does not require an employer to show at least a 75

- percent curtailment in its normal

operations in order to establish a “ work stoppage, ” for purposes of West Virginia Code §

21A

- 6

- 3(4) (2012).

Cumberland & Allegheny demonstrates that the determination of whether a

stoppage of work due to a labor dispute has occurred does not have to be made in a vacuum

.

In that case, w e surveyed decision s from Arkansas, Missouri, and Arizona before

determining that no work stoppage had occurred ; likewise, it is appropriate in this case to

look to other states for guidance

. And when we do that, we see that n o court has established

a hard

- and

- fast rule that a certain percent reduction in the employer ’ s normal operations

amounts to a substantial curtailment. We will not make that rule

, either

, given the fact

intensive nature of the substantial curtailment inquiry. But in reviewing the facts of the

cases before them, we cannot help but notice that other courts have recognized that a 20

-

to 30

- percent reduction in production would seem to be the “ critical breaking point

. . .

sufficient to establish a stoppage. ” 25 These include Missouri (decrease in production by

24 Cumberland & Allegheny , 147 W. Va. at 639, 130 S.E.2d at 121

.

25 Jerre S. Williams, The Labor Dispute Disqualification

-- A Primer and Some

Problems , 8 VAND. L. REV. 338, 340 (1955) ( “ The critical breaking point would seem to

be about a 20 to 30 percent cut in production as being sufficient to establish a stoppage. ” )

(citing Milton I. Shadur, Unemployment Benefits and the Labor Dispute Disqualification

, 17 U. CHI. L. REV. 294, 310, n.64 (1950)). See also Willard A. Lewis, The Stoppage of

Work Concept in Labor Dispute Disqualification Jurisprudence , 45 J. URB. L. 319, 32717 20 to 30 percent), 26 Alaska (decrease in production by 20 to 30 percent), 27 Maryland

(decrease in production by 20 to 30 percent), 28 Massachusetts (decrease in production by

20 to 30 percent), 29 Nebraska (decrease in production by 20 percent ), 30 and Hawaii

(decrease in production by 20 to 30 percent). 31

(1967) ( “‘ Stoppages ’ have been found to exist where there has been a decrease of total

business in excess of 3 0 percent, and a decrease of 20 percent of normal production. ” )

(hereinafter Lewis )

.

26 Tri

- State Motor Transit Co. v. Indus. Comm ’ n Div. of Emp. Sec. , 509 S.W.2d 217,

225 (Mo. Ct. App. 1974) (20 to 30% cut in production appears to be critical breaking point;

lower tribunal not clearly wrong in finding that stoppage of work ended where employer ’ s

revenues were 16.16% less than gross revenues in the months preceding the strike).

27 Twenty

- Eight (28) Members of Oil, Chem. & Atomic Workers Union, Lo c. No. 1

- 1978 v. Emp. Sec. Div. of Alaska Dep ’ t of Lab. , 659 P.2d 583, 592

− 93 (Alaska 1983)

(where lower tribunal found a substantial curtailment of employer operations based on

increased costs and labor dispute ’ s effect on employer ’ s tertiary business ope rations,

remanding for determination of whether employer ’ s main business operations were

substantially curtailed).

28 Emp. Sec. Admin. v. Browning

- Ferris, Inc. , 438 A.2d 1356, 1 36 4 (Md. 1982)

(finding no stoppage of work where employer returned to 90% to 10 0% of prestrike

operations by “ utilization of management personnel, replacement employees and

employees from other divisions of the company ” ).

29 Reed Nat ’l Corp. v. Dir. of Div. of Emp. Sec. , 446 N.E.2d 398, 400

− 01 (Mass.

1983) (reversing order awarding benefits and remanding for further factual findings by

administrative body).

30 Magner v. Kinney , 2 N.W.2d 68 9 , 693 (Neb. 1942) (stoppage of work where

trucking company ’ s business operations decreased 30%).

31 Meadow G old Dairies

- Hawaii, Ltd. v. Wiig , 437 P.2d 317, 320 (H aw . 1968)

(lower tribunal did not err as a matter of law when it found that reduction of production at

two dairies (18.65% and 17.66%) was not a stoppage of work).18 Depending on the facts presented in a particular case, “ ‘ indicia of

substantialness ’ ” other than production may be relevant, such as “ ‘ decreases in business

revenue, services rendered, marketing, research, and maintenance, transportation, and

construction activities. ’ ” 32 P roduction is enough in this case

. The function of

Constellium ’ s Ravenswood plant in 2012 wa s to produce aluminum plate and coil

.

Claimants went on strike and Constellium briefly stopped producing. Constellium then

re started limited production after shifting salaried employees from their regularly assigned

tasks to bargaining unit, i.e., production, work. Regardless of Constellium ’ s business

decision to reassign salaried workers, normal plate production at the plant still fell by 38

percent and coil production by 51 percent

— decreases beyond the 20

- to 30

- percent

decrease breaking point noted by other courts referenced above

. 33

In Cumberland & Allegheny

, we emphasized that whether a stoppage of work

has occurred “ cannot be determined solely on the basis of the proportionate number of

employees affected

, ” and that

[i] t is conceivable that in some situations a strike or lockout

affecting relatively few employees would produce a stoppage

of work if such men were employed in the performance of

32 Browning

- Ferris, Inc. , 438 A.2d at 1364

– 65 (quoting Lewis at 332).

33 Cf. Wolford v. Gaston , 182 W. Va. 674, 676, 391 S.E.2d 364, 367 (1990)

(concluding that 25% reduction in wages was a “ substantial, unilateral change ” to terms of

employment so as to preclude disqualification from unemployment compensation

benefits); Brewster v. Rutledge , 176 W. Va. 265, 266, 342 S.E.2d 232, 233 (1986) (30%

reduction in wages ($3.35 to $2.25 per hour) was “ substantial unilateral change ” in

conditions of night watchman ’ s employment justifying re signation).19 duties of such vital nature that their unemployment would

result in a substantial curtailment of the normal overall

activities or operations of the employer. On the other hand, in

other situations the unemployment of a proportionately greater

number of employees might have no substantial effect on the

normal activities of the employer. In some situations, a

substantial curtailment of work in a single category or

department of the employer ’ s operations might be of such a

vital nature as to result in a substantial curtailment of the

employer ’ s overall activities if all categories or departments

were of an interdependent nature; while, conceivably, in

another and different situation, a complete cessation of work in

a single category or department of some incidental or minor

nature might produce no appreciable curtailment of the overall

operations of the employer. [ 34 ]

The facts of this case are not like th e theoretical close call s discussed in

Cumberland & Allegheny

. Here, Constellium ’ s 680 hourly employees

— 80 percent of

Constellium ’ s available workforce

— walked off the job and left 180 salaried employees to

maintain some level of production during the strike

. Even with the salaried employees ’

efforts, production of Constellium ’ s main product lines still dipped by 51 percent (coil)

and 38 percent (plate). Those figures

— an 80

- percent reduction in workforce, decrease in

production of plate by 38 percent, and decrease in production of coil by 51 percent

—

demonstrate that Constellium ’ s normal operations were substantially curtailed during the

2012 labor dispute. T he Tribunal and Board clearly erred when they found otherwise.

34 Cumberland & Allegheny

, 147 W. Va. at 639

– 40, 130 S.E.2d at 121

.20 Constellium attempted to backstop the absence of bargaining unit employees

by reassigning salaried employees to bargaining unit positions

. The Tribunal appears to

have taken Constellium ’ s ability to continue any operations by the efforts of salaried

employees as a strong indication that normal operations were not substantially curtailed.

That view does not comport with our statement in Cumberland & Allegheny that a work

stoppage “ need not be complete ” 35 to trigger disqualification under the labor dispute

provision. I t also discounts the fact that even with its salaried employees ’ extra hours

worked, “ herculean effort, and smart, creative management of resources ”

— in the words of

the Tribunal

— Constellium ’ s production levels fell sharply. 36

The Tribunal and Board ’ s factual findings are due substantial deference

, and

“ t he disqualification provisions of the unemployment statutes must be narrowly

35 Id . at 638, 130 S.E.2d at 120 (internal quotation omitted)

.

36 Claimants also argue that Cumberland & Allegheny requires a showing of a

backlog of work or services, generally, to demonstrate that the employer ’ s operations were

substantially curtailed during the labor dispute. Again, Cumberland & Allegheny does not

say that. In that case, we discussed the need for a showing of a backlog of work in the non

production categories of work cited by the employer, such as maintenance, meter tests, and

handling of service orders. See Cumberland & Allegheny

, 147 W. Va. at 639, 130 S.E.2d

at 121 (following a lengthy list of categories of work that were curtailed during labor

dispute

— none of which was the employer ’ s primary business of supplying and selling

gas

— stating that “ there was no showing of an accumulated backlog of work or services in

such categories sufficient in vo lume or nature to require employment of additional

personnel or to require overtime employment on the part of the regular employees after

normal operations were resumed ” ) (emphasis added)

.21 construed. ” 37 We do not defer to th ose tribunals

, however, when we conclude that a factual

finding is clearly wrong. C onsidering that the 2012 labor dispute reduced production at

the plant by the rates discussed above and affected 80 percent of Constellium ’ s employees,

t he Tribunal ’ s and Board ’ s finding that Constellium ’ s normal operations were not

substantially curtailed due to the labor dispute is clearly wrong

. Thus, the lower tribunals ’

decision that a disqualifying stoppage of work under § 21A

- 6

- 3(4) (2012) did not occur at

the Ravenwood plant due to the 2012 labor dispute is erroneous, as well.

B. Exceptions to Disqualification

Because a stoppage of work occurred at Constellium ’ s Ravenswood plant

during the 2012 labor dispute

, Claimants are disqualified f or unemployment compensation

benefits under § 21A

- 6

- 3(4 ) (2012) unless they can satisfy at least one of three exceptions

.

We stated in Roberts v. Gaston that:

W.Va.Code, 21A

– 6

– 3(4) (1984)

, disqualifies

employees from receiving unemployment compensation

benefits if they are involved in “ a work stoppage incident to a

labor dispute, ” unless they can satisfy one of three statutory

exceptions: (1) the employees are “ required to accept wages,

hours or conditions of employment substantially less favorable

than those prevailing for similar work in the locality ” ; (2) the

employees “ are denied the right of collective bargaining under

generally prevailing conditions ” ; or (3 ) “ an employer shuts

down his plant or operation or dismisses his employees in order

37 Smittle v. Gatson , 195 W. Va. 416, 422, 465 S.E.2d 873, 879 (1995 ) (citing Peery

, 177 W. Va. at 551, 355 S.E.2d at 45 )

.22 to force wage reduction, changes in hours or working

conditions. ” [ 38 ]

Based on the evidence offered by Claimants during the November 2012 hearing, the

Tribunal found that Claimants had not satisfied any of those exceptions. Neither the Board

nor the circuit court disturbed the Tribunal ’ s findings. Now, they are the subject of

Claimants ’ cross

- appeal.

Claimants argue that the Tribunal erred in two

, general ways. First,

Claimants contend that the Tribunal violated their due process rights by blocking them (via

the order quashing portions of a subpoena for documents issued to Constellium) from

obtaining documents from Constellium that Claimants believe will support this theory :

Constellium ’ s collective bargaining in 2012 was controlled by a parent company in Paris,

France, which Claimants deem an unfair labor practice under fede ral labor law and a denial

of the ir right to collective bargaining under § 21A

- 6

- 3(4) (2012). Second, Claimants argue

that the Tribunal ignored several unfair labor practices committed by Constellium during

collective bargaining in 2012

, and so also overlooked that Claimants had necessarily

satisfied at least one of the exceptions to disqualification under § 21A

- 6

- 3(4) (2012). We

consider these issues in turn.

38 Syl. Pt. 1, Roberts v. Gatson , 182 W. Va. 764, 392 S.E.2d 204 (1990).23 (1) The Subpoena Duces Tecum

Claimants raise their due process argument for the first time on appeal. “ Our

law is clear in holding that, as a general rule, we will not pass upon an issue raised for the

first time on appeal

. ” 39 S o

, we do not consider claimants ’ argument that the Tribunal

violated their due process rights by quashing requests in the subpoena duces tecum

. This

portion of Claimants ’ cross

- appeal contains, however, two argument s that Claimants made

to the circuit court

. Perversely, Claimants have injected these old arguments into their

novel due process argument. O ut of an abundance of caution, we briefly address those

arguments included in the due process portion of Claimants ’ cross

- appeal which they also

raised below

.

Claimants argue the requests quashed by the Tribunal are very specific, not

“ vague, general and unnecessarily cumbersome ” as the Tribunal labelled them. The

Tribunal was correct: t he requests are anything but specific. For example, in the first

request, Claimants demanded :

1. All communications, memos, emails, text messages,

videos and pictures between Constellium Rolled Products

39 Mayhew v. Mayhew , 205 W. Va. 490, 506, 519 S.E.2d 188, 204 (1999)

. Still, “ [a]

constitutional issue that was not properly preserved at the trial court level may, in the

discretion of this Court, be addressed on appeal when the constitutional issue is the

controlling issue in the resolution of the case. ” Syl. Pt. 2, Louk v. Cormier , 218 W. Va. 81,

622 S.E.2d 788 (200 5) . For the reasons discussed later in this opinion, Claimants’ ability

to present evidence to bolster their claim that in 2012, Constellium’s collective bargaining

was controlled by third parties in France does not control the ultimate issue of whether

C laimants have satisfied one of the exceptions to disqualification under § 21A

- 6

- 3(4)

(2012), so we do not exercise our discretion to consider Claimants’ due process argument.24 Ravenswood, LLC employees or its agents, including

AFIMAC, regarding union members of Constellium Rolled

Products Ravenswood, LLC, regarding the labor dispute

between United Steelworkers ( “ USW ” ) Local Union 5668 and

Constellium Rolled Products Ravenswood, LLC.

The request i s not limited in time. It does not identify the Constellium

employees whose communications are sought

, such as those of the Chief Executive Officer

or the Vice President of Human Resources (Constellium ’ s chief negotiator in 2012)

. And,

it does not indicate the subjects of the communications sought, other than “ union members ”

and “ the labor dispute

, ” which are both huge categories. If enforced by the Tribunal,

Constellium would have had to produce each communication by any of its employees (or

those of its affiliates) to any of its employees (or those of its affiliates) regarding union

members or the labor dispute. Requests 2 and 3 resemble the first. The Tribunal ’ s

assessment was not in correct: the request s are vague, general and unnecessarily

cumbersome, as are the other two requests it quashed

. 40

Second, Claimants appear to argue that the subpoena should have been

enforced so long a s it might have produced some relevant evidence

. They cite West

Virginia Rules of Evidence 401 (Test for Relevant Evidence)

, 402 (General Admissibility

40 Cf. Kahle ’ s Kitchens, Inc. v. Shutler Cabinets, Inc. , 240 W. Va. 209, 217, 809

S.E.2d 520 , 528 (2018) (naming “the breadth of the document request, the time period

covered by it, and the particularity of the documents described” as some of the “factors to

consider when assessing whether a subpoena duces tecum subjects a witness to an undue

burden”) (quoting Palmer & Davis, Litigation Handbook on West Virginia Rules of Civil

Procedure § 45(d) at 1132−33 (5th ed. 2017)).25 of Relevant Evidence)

, and 403 (Excluding Relevant Evidence for Prejudice, etc.) for

support

. But t hose rules do not address the question answered by the Tribunal: whether

the subpoena for documents subjected Constellium to an undue burden? 41 Importantly,

Claimants do not argue that the Tribunal lack s the authority to quash the requests, 42 but

only that it exercised it s authority mistakenly. And, although the Tribunal told Claimants

why it was quashing the requests, it does not appear that Claimants recalibrate d the requests

and tr ied again to obtain documents they maintain were vital to allow them to prove foreign

control over Constellium ’ s bargaining

. For all those reasons, we will not say that the

Tribunal erred in quashing portions of the subpoena duces tecum as “ vague, general and

unnecessarily cumbersome. ”

(2) Exceptions to D isqualification

We turn to the Claimants ’ argument that notwithstanding the quashed

requests in the subpoena duces tecum

, the Tribunal ignored unfair labor practices

committed by Constellium during collective bargaining in 2012 so that Claimants

necessarily satisfied at least one of the exceptions to disqualification under § 21A

- 6

- 3(4)

(2012)

. Constellium responds that Claimants ’ arguments rest on an inaccurate reading of

41 Cf. W. Va. R. Civ. P. 45(d)(3)(A)(iv) (providing that, “[o]n timely motion, the

court by which a subpoena was issued shall quash o r modify the subpoena if it . . . subjects

a person to undue burden”).

42 Cf

. W. Va. C.S.R. § 84

- 1

- 5.3, Rules of Evidence and Procedure (providing that

the Board of Review and its subordinates are not required to follow the common law or

statutory rules of evidence or procedure, but not precluding them from considering those

rules in conducting the proceedings before them).26 Roberts v. Gaston

, a case in which we endeavored to put meat on the bones of the

exceptions to disqualification under § 21A

- 6

- 3(4)

. 43 Constellium is correct.

In Roberts

, this Court was asked to review the Board ’ s denial of

unemployment compensation benefits to striking workers. 44 The workers argued that they

were not disqualified from benefits because the employer had denied them the right to

collective bargaining under generally prevailing conditions (exception 2) and required

them to accept contract terms that were less favorable than those in their old contract

(exception 1)

. 45

The meaning of “ denied the right of collective bargaining under generally

prevailing conditions ” was an issue of first impression. The Court observed that the

National Labor Relations Act 46 can guide interpretation of the phrase “ denied the right of

collective bargaining, ” under § 21A

- 6

- 3(4) and then went on to survey certain principles

of federal labor law

. 47 Despite that discussion, this Court did not hold that a violation of

43 Roberts , 182 W. Va. at 764, 392 S.E.2d at 204

.

44 Id . at 76 6 , 392 S.E.2d at 20 6

.

45 Id

.

46 29 U.S.C. §§ 151−169.

47 Roberts , 182 W. Va. a t 768

− 7 1 , 392 S.E.2d at 208

− 10 (quoting 29 U.S. Code §

158(d) (defining collective bargaining )).27 federal labor law is necessarily a denial of the right to collective bargaining under West

Virginia ’ s labor dispute provision. Instead, this Court said the opposite:

It is obvious that these general principles [regarding the

denial of the right of collective bargaining under § 21A

- 6

- 3(4)]

are substantially different from the ordinary inquiry that is

made under federal labor law in order to find an unfair labor

practice based on the duty to bargain collectively. Under our

unemployment compensation statute, the test is not whether the

employer may have committed an unfair labor practice, but

whether his actions amounted to the denial of the right of

collective bargaining. [ 48 ]

T his Court then held that, “ [a] refusal to engage in the collective bargaining process or to

negotiate on those mandatory subjects that traditionally form the basis of the collective

bargaining agreement so frustrates the process as to constitute a denial of the right of

collective bargaining under W.Va.Code, 21A

– 6

– 3(4) (1984). ” 49

With that in mind, we turn to the Tribunal ’ s discussion regarding Claimants ’

arguments that Constellium denied them their right of collective bargaining under

§ 21A

- 6

- 3(4):

In this case, the claimants ’ union and the employer met and

exchanged proposals. There was give and take, concessions by

each party on different issues, and meaningful negotiations.

The parties were able to resolve the non

- economic issues in

controversy. The parties struggled to resolve the economic

issues, in part because of each party ’ s positions on the “ m edical

48 Id . at 771, 392 S.E.2d at 211

.

49 Syl. Pt. 2, id . at 764, 392 S.E.2d at 204.28 necessity ” term of the medical insurance coverage provided by

the employer.

. . . .

However, considering the entire record, including that the

employer met with the claimants[ ’ ] union many times and there

were concessions and exchange on different issues, it is

considered there were meaningful negotiations between the

parties.

Claimants do not argue that the Tribunal ’ s account of the parties ’ bargaining

is inaccurate. Instead, they argue that Constellium ’ s lead negotiators lacked final authority

to bind the company on economic proposals

— an alleged unfair labor practice

— and

engaged in bad faith bargaining by insisting on the medical necessity clause

— another

alleged unfair labor practice

. 50 A s the Tribunal observed, whether an employer has

committed an unfair labor practice under federal law is not the inquiry to determine whether

its “ actions amounted to the denial of the right of collective bargaining ; ” 51 it is whether

there is “ [a] refusal to engage in the collective bargaining process or to negotiate on those

mandatory subjects that traditionally form the basis of the collective bargaining agreement

50 Claimants also include a single sentence argument that a communique from

Constellium ’ s CEO to union members establishes bad faith bargaining under § 21A

- 6

- 3(4).

“ Although we liberally construe briefs in determining issues presented for review, issues

whi ch are not raised, and those mentioned only in passing but are not supported with

pertinent authority, are not considered on appeal. ” State v. LaRock , 196 W. Va. 294, 302,

470 S.E.2d 613, 621 (1996). We do not, therefore, address Claimants ’ assertion.

51 Roberts , 182 W. Va. at 771, 392 S.E.2d at 2 11

.29 so frustrates the [collective bargaining] process as to constitute a denial of the right of

collective bargaining under W.Va.Code, 21A

– 6

– 3(4) (1984). ” 52

Here, there is simply no dispute that the parties engaged in the collective

bargaining process and negotiated on subjects that are traditionally the basis of collective

bargaining agreements. Again, a s the Tribunal related,

[t] he negotiations between the union representatives

and the employer representatives to review the collective

bargaining agreement began in May 2012. There were 26

sessions before the labor dispute began August 5, 2012.

During the sessions, there were concessions made by the

employer and the claimants ’ union on non

- economic issues

and economic issues. The parties agreed to first address the

noneconomic issues before the economic issues were

addressed. T he parties resolved the non

- economic issues. The

parties were not able to resolve the disagreements of [sic]

economic issues, so a strike ensued August 5, 2012.

. . . .

As regard [sic] the economic issues, the employer was

willing to make concessions or adjustments to other wage,

bonus, or economic issues, if the claimants would agree to the

medical necessity clause being included in the new contract.

Since the claimants insisted the new contract not have a

medical necessity clause, the parties struggled to agree or

negotiate on the other economic issues. The employer created

and perpetuated the medical necessity issue and controversy

which prevented an agreement or resolution of other economic

issues.

The parties continued to meet in negotiating sessions

after the strike began. The parties met at the governor ’ s

52 Syl. Pt. 2, id . at 764, 392 S.E.2d at 204.30 mansion to forge an agreement. The employer agreed to add

language to the medical necessity paragraph which included

“ medical necessity is not intended to deny access to health care

services or care to our employees or their dependents. ” With

the additional or supplemental language added to the medical

necessity paragraph, the employees agreed to vote favorably

upon the collective bargaining agreement on September 20,

201 2, and returned to work September 24, 2012.

The Tribunal ’ s undisputed account of the parties ’ negotiations in 2012 does

not evince “ [a] refusal [by Constellium] to engage in the collective bargaining process or

to negotiate on those mandatory subjects that traditionally form the basis of the collective

bargaining agreement [that] so frustrate [d] the [collective bargaining] process as to

constitute a denial of the right of collective bargaining under W.Va.Code, 21A

– 6

– 3(4)

(1984). ” 53 As this Court observed in Roberts

, “ not every event that may constitute a federal

unfair labor practice will constitute a denial of the right of collective bargaining under

W.Va.Code, 21A

– 6

– 3(4). ” 54 Considering the frequency and constancy of the parties ’

bargaining sessions, the progress made on non

- economic matters and

, later, on economic

matters, plus each parties ’ eventual willingness to compromise, we cannot say that the

alleged control of Constellium ’ s collective bargaining in 2012 by a third

- party or

53 Syl. Pt. 2, id . at 764, 392 S.E.2d at 204.

54 Id . at 771, 392 S.E.2d at 211

.31 Constellium ’ s position regarding the medical necessity clause establish es a deprivation of

Claimants ’ rights to collective bargaining. 55

Claimants also c ontend that the company ’ s insistence on the medical

necessity clause was a n attempt to force a wage reduction under § 21A

- 6

- 3(4) (exception

number 3). Contrary to Claimants ’ position

, an employer ’ s pursuit of a wage reduction

,

changes in hours or working conditions during collective bargaining is not itself an

exception to disqualification under § 21A

- 6

- 3(4). The statute in effect at the time of the

2012 labor dispute states: “ No disqualification under [§ 21A

- 6

- 3(4)] is imposed

. . . if [1]

an employer shuts down his or her plant or operation or dismisses his or her employees [2]

in order to force wage reduction, changes in hours or working conditions. ” Claimants ’

argument

— that by pursuing the medical necessity clause during collective bargaining

Constellium sought a de facto wage reduction

— ignores the necessary firs t component of

this exception to disqualification: “ that the employer acted to shut down the work site

. ” 56

Here, Claimants walked out on August 5, 2012. Constellium did not “ act to shut down

[its] plant, operation or to dismiss [its] employees, ” 57 so Claimants cannot satisfy the

requirements of the third exception in § 21A

- 6

- 3(4). In sum, contrary to Claimants ’

55 Cf. Smittle , 195 W. Va. at 429, 465 S.E.2d at 886 ( reasoning that where “the

record show [ed] that [employer] did negotiate with its employees before the contract

expired, the letter incident standing alone was not a denial of the right to bargain

collectively ”).

56 Syl. Pt. 4 , in part, id

.

57 I d . at 424, 46 5 S.E.2d at 881

.32 argument in their cross

- appeal, we do not find that the Tribunal erred when it quashed

certain requests for documents in the Claimants ’ subpoena duces tecum, nor do we find

that the Tribunal erred regarding the exceptions to disqualification in § 21A

- 6

- 3(4) (2012).

C. Preemption

We quickly dispose of Constellium ’ s argument that the labor dispute

disqualification is preempted by federal labor law. 58 The employer in Roberts made a

similar argument:

PPG appears to argue that if we attempt to determine

whether a failure to bargain has occurred under our

employment security statutes by reference to whether an unfair

labor practice has been committed, we would be pre

- empted

from doing so under the principles announced in New York Tel.

Co. v. New York State Dep ’ t of Labor

, 440 U.S. 519, 99 S.Ct.

1328, 59 L.Ed.2d 553 (1979). This case holds that a state is

not precluded by the doctrine of federal labor law pre

- emption

from authorizing the payment of unemployment compensation

benefits to persons while they are out of work on strike. [ 59 ]

We then stated that we found “ nothing in [ New York Tel. Co. ] which prevents us or the

state unemployment agency from referring to the federal labor law to determine whether

there is either a failure to bargain collectively or to determine if unfair labor practices rise

58 See Wisconsin Dep ’ t of Indus., Lab. & Hum. Rels. v. Gould Inc. , 475 U.S. 282,

286 ( 1986) (stating that “[c] entral among [principles of the NLRA’s preemptive scope] is

the general rule set forth in San Diego Building Trades Council v. Garmon

. . . that States

may not regulate activity that the NLRA protects, prohibits, or arguably protects or

prohibits ”)

.

59 Roberts , 182 W. Va. at 769 n.5, 392 S.E.2d at 209 n.5.33 to this level. ” 60 The circuit court relied on Roberts and its endorsement of New York

Telephone to reject Constellium ’ s preemption argument.

Constellium concede s that a state may categorically grant or deny

unemployment compensation during labor disputes under New York Telephone without

inserting itself into the federally regulated collective bargaining process

. Instead,

Constellium argues that a state “ may not use its unemployment compensation statutes to

regulate bargaining behavior by the employer or the union

. ” 61 Constellium contends that

the Tribunal and the Board did that in this case by applying the labor dispute provision in

a such a way as to penalize “ employers who resort to lawful self

- help techniques during a

strike, ” i.e., by finding that Constellium ’ s resort to a contingency plan to maintain some

level of operations during the labor dispute justified payment of unemployment

compensation benefits to Claimants under §21A

- 6

- 3(4)

.

We have rejected the Tribunal ’ s apparent conclusion that Constellium ’ s

continued production during the labor dispute, however far reduced, established that its

normal operations were not substantially curtailed and that a work stoppage had not

occurred

. Consequently, Constellium ’ s main preemption argument

— that the Tribunal

used the labor dispute provision to regulate Constellium ’ s con duct and to level the parties ’

positions during the labor dispute

— is moot. Further, as we stated in Roberts

, “ [u]nder our

60 Id

.

61 Emphasis in original.34 unemployment compensation statute, the test is not whether the employer may have

committed an unfair labor practice, but whether his actions amounted to the denial of the

right of collective bargaining. ” 62 As demonstrated above, the inquiries are not coextensive,

and our consideration of the exceptions to disqualification in § 21A

- 6

- 3(4) may be guided

by federal law, but they are not controlled by it. For those reasons, we affirm the circuit

court ’ s order insofar as it denied Constellium ’ s appeal on preemption grounds.

C ONCLUSION

For the reasons set forth above, the final order of the Circuit Court of

Kanawha County entered on June 12

, 2020

, is reversed in part and affirmed in part

, and

the case is remanded for entry of an order denying the claimants ’ applications for

unemployment compensation benefits.

Reversed in part and affirmed in part and

remanded with directions.

62 Roberts , 182 W. Va. at 771, 392 S.E.2d at 21 1

.