Curcio Unemployment Compensation Case v. Unemployment Compensation Board of Review
| Decision Date | 27 September 1949 |
| Docket Number | 1115 |
| Citation | 68 A.2d 393,165 Pa.Super. 385 |
| Parties | Curcio Unemployment Compensation Case. Westinghouse Electric Corporation, Appellant, v. Unemployment Compensation Board of Review |
| Court | Pennsylvania Superior Court |
Argued April 12, 1949.
Appeal, No. 38, April T., 1949, by employer, Westinghouse Electric Corp., from order of Unemployment Compensation Board of Review, Appeal No. B-44-94-G-372, Decision No. B-16686 allowing claim of Frank Curcio.
John G. Wayman, with him David McNeil Olds and Reed, Smith, Shaw & McClay, for employer, appellant.
William L. Hammond, Special Deputy Attorney General, with him Richard H. Wagner, Associate Counsel, and T McKeen Chidsey, Attorney General, for Unemployment Compensation Board, appellee.
Sidney G. Handler, with him Douglass & Handler, for claimant and Pennsylvania Federation of Labor, intervenors appellees.
OPINION
Two rival labor unions were competing for recognition as the exclusive representative of the 600 employes of the appellant, Westinghouse Electric Corporation, in its plant in Beaver, Pennsylvania. There was no existing bargaining unit in the plant. These unions -- Local No. 634 United Electrical, Radio and Machine Workers, C. I. O., and Local No. 201, International Brotherhood of Electrical Workers, A. F. L. -- each had a membership of between 250 and 300 of the workmen in the plant. The C. I. O. local did not have standing to petition the National Labor Relations Board to conduct an election but nevertheless in a series of demands, beginning in October 1947 and ending on March 8, 1948, sought recognition as sole bargaining agent for all workmen in the plant without certification by that Board. In January 1948 the A. F. L. local also had petitioned the company for recognition as the plant bargaining unit without certification. To these demands the company notified both unions, thus: "We stand ready to recognize and to meet with any union that is certified by the N. L. R. B. as the exclusive representative of the employees". In assuming this stand, and refusing recognition otherwise, the company acted within its rights. To compel the company to accede to the demands of its local union for recognition, the District Council of C. I. O. forced a work stoppage at the plant at 10:30 a.m. on March 8, 1948, when all of the members of the C. I. O. local union went out on strike. All other production workers were excluded from the plant thereafter by a picket line of the striking union. The plant was still strike-bound on June 16, 1948, the date of the hearing before the Unemployment Compensation Board of Review. In the meantime on petition of the A. F. L. local an election had been held on May 11, 1948, under the supervision of the National Labor Relations Board to determine whether that union was entitled to certification as bargaining agent. Strangely enough, the election resulted in a tie and decided nothing; 266 votes for affiliation with Local 201 of the A. F. L. International Brotherhood of Electrical Workers, as against 266 votes for "no union", were recorded.
The disposition of this appeal, from the order of the Board awarding unemployment compensation to Frank Curcio, will govern claims of about 165 other members of the A. F. L. local union. The facts applicable to all of them are substantially alike and are undisputed. The Referee affirmed the Bureau's refusal of compensation and disallowed the claim in question. The Unemployment Compensation Board of Review on appeal however reversed the decision of the Referee and allowed the claim.
We are of the opinion that claimant is barred under the admitted facts by the present amendment of § 402(d) of the Unemployment Compensation Law, the Act of June 30, 1947, P. L. 1186, 43 PS § 802. By that amendment it is provided: "An employe shall be ineligible for compensation for any week . . . (d) In which his 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 is or was last employed: Provided, That this subsection shall not apply if it is shown that (1) he is not participating in, or directly interested in, the labor dispute which caused the stoppage of work, and (2) he is not a member of an organization which is participating in, or directly interested in, the labor dispute which caused the stoppage of work, and (3) he does not belong to a grade or class of workers of which, immediately before the commencement of the stoppage, there were members employed at the premises at which the stoppage occurs, any of whom are participating in, or directly interested in, the dispute."
Claimant did not voluntarily leave his work without good cause. He and about 150 other production workers remained at work the entire first day of the strike. But the following morning when they reported for work they were opposed by approximately 200 pickets who in massed groups denied their right of access to the plant. The picket line at the outset of the strike obviously was not maintained within the limits permitted by law: Cf. Westinghouse Elec. v. United Elec., 353 Pa. 446, 46 A.2d 16. From and after March 9, 1948, the striking union maintained a picket line around the plant on a 24 hour basis, excluding all but office workers and construction personel. Though at times only a skeleton line was maintained yet it was made apparent that a line of 100 or more pickets would be resumed if any production employes attempted to resume work. The findings of the Board, though somewhat equivocal, support this conclusion: Although there was no violence, there were threats of it and the restraining action of the pickets was of such coercive nature as to supply claimant with good cause for not making further attempts to enter the plant. Bliley Electric Co. v. Unemployment Compensation Board of Review, 158 Pa.Super. 548, 556, 557, 45 A.2d 898. Cf. Phillips Unemploy. Compensation Case, 163 Pa.Super. 374, 62 A.2d 84.
The Unemployment Compensation Board of Review, with some reluctance however, concluded that this case was controlled by Duquesne Brewing Co. v. Unemployment Compensation Board of Review, 162 Pa.Super. 216, 56 A.2d 269, affirmed in 359 Pa. 535, 59 A.2d 913, and that on that case as authority this contest between two unions for labor control was not a labor dispute. Accordingly, on a finding that claimant's unemployment was involuntary and without fault of his own, the Board awarded compensation. The order is based upon error of law and must be reversed.
In the Loerlein case we refused to subsidize an illegal strike at the expense of contributing employers and the Commonwealth, under the then applicable amendment of § 402(d) of the Unemployment Compensation Law -- the Act of May 29, 1945, P. L. 1145. There should be no question that our conclusion that there was no industrial dispute, under the peculiar facts of that case, rested upon two grounds: The dispute did not involve a grievance against the employer over wages, hours or conditions of employment and the employer was not involved; [1] in addition the objectives of the striking claimants were unlawful because in violation of an existing agreement with their employer binding upon them. The circumstances of that case clearly indicated that the...
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