Toma v. Unemployment Compensation Bd. of Review

• Decision Date: 16 December 1971
• Citation: 285 A.2d 201,4 Pa.Cmwlth. 38
• Parties: Peter F. TOMA, Jr., Appellant, v. UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, Appellee, and Mack Printing Company, Intervening-Appellee. Robert S. KEIBER, Sr., Appellant, v. UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, Appellee, and Mack Printing Company, Intervening-Appellee. Ladislaus T. FICZKO, Appellant, v. UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, Appellee, and Mack Printing Company, Intervening-Appellee. Gladys CHEGWIDDEN, Appellant, v. UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, Appellee, and Mack Printing Company, Intervening-Appellee.
• Court: Pennsylvania Commonwealth Court

Page 201

285 A.2d 201

4 Pa.Cmwlth. 38

Peter F. TOMA, Jr., Appellant, v. UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, Appellee, and Mack Printing Company, Intervening-Appellee.

Robert S. KEIBER, Sr., Appellant, v. UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, Appellee, and Mack Printing Company, Intervening-Appellee.

Ladislaus T. FICZKO, Appellant, v. UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, Appellee, and Mack Printing Company, Intervening-Appellee.

Gladys CHEGWIDDEN, Appellant, v. UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, Appellee, and Mack Printing Company, Intervening-Appellee.

Commonwealth Court of Pennsylvania.

Argued Sept. 8, 1971.

Decided Dec. 16, 1971.

Joseph L. Rosenfeld, Allentown, for appellants.

Sydney Reuben, Asst. Atty. Gen., Harrisburg, for appellee.

Before BOWMAN, President Judge, and CRUMLISH, Jr., KRAMER, WILKINSON, MANDERINO, MENCER and ROGERS, JJ.

OPINION

CRUMLISH, Jr., Judge.

Before us is an appeal from a decision and order of the Unemployment Compensation Board of Review dated August 19, 1970 affirming a Referee's denial of unemployment compensation benefits for the period during which appellants were involved in a work stoppage. The issue presented herein is whether that work stoppage was the result of a strike or of a lockout. Section 402(d) of the Act of December 5, 1936 (1937), P.L. 2897, 43 P.S. § 802(d) provides that employees are eligible for unemployment compensation only during a work stoppage resulting from a labor dispute if the stoppage was caused by a lockout. We hold that appellants prevail and are entitled to payments under section 402(d), subject to certain conditions referred to hereinafter.

Claimants are employees of the Mack Printing Company who were members of the Mack Printing Employees Association, their collective bargaining agent. The Company and the Association were parties to a collective bargaining agreement which expired on December 31, 1968.

The labor dispute which gives rise to this appeal has unique and somewhat complicated factual incidents which should be delineated in light of the bearing they have on the result we obtain today. In October of 1968, negotiations began between the Company and the Association in order to discuss the terms of a new agreement. After several meetings had been held and no terms yet agreed upon, the Company announced on December 20th that it would not be available for negotiations until January 6th. ¹ The Company, on December 20th, also sent to the Association a proposed agreement which provided that work should continue under the terms of the then existing agreement during the negotiations, until January 31st. Incidentally, the proposal did not provide for retroactivity to January 1, 1969. The Association did not accept this proposal.

No negotiations were conducted after December 20th but work continued as regularly scheduled up until the 31st of December. At that time the Federal Mediation and Conciliation Service suggested a ten day cooling off period. The Association assented and so informed the Company but it failed to respond.

On January 2nd, ² the members of the Association reported to work and completed the first shift. A request by the Association that the Company allow an employees' meeting was refused by the Company but a meeting of the employees was nevertheless held after the completion of the first work shift. At that time a vote was taken and the Association called for a work stoppage until the Company had replied to the recommendation of the Federal Mediation and Conciliation Service. After this meeting and vote, two employees, who continued to work, were told by supervisors to leave the plant. The work stoppage began on the evening of January 2nd at which time the Association began to picket the Company.

On January 6th, the Company, by certified letter, notified the Employees that it considered their action to be an illegal strike and that anyone who had failed to show for work lost his status as an employee of Mack Printing Company, and all benefits including Company sponsored insurance would be cancelled. Thereafter, two employees were told by the Company's supervisory personnel that they could not report to work and that they should resolve their labor problem through their Association representatives. The work stoppage continued until March 3, 1969 at which time a new collective bargaining agreement came into being.

In determining whether the management or the union caused the work stoppage, we resort to this test. 'Have the employees offered to continue working for a reasonable time under the pre-existing terms and conditions of employment so as to avert a work stoppage pending the final settlement of the contract negotiations; and has the employer agreed to permit work to continue for a reasonable time under the pre-existing terms and conditions of employment pending further negotiations?' Erie Forge and Steel Corp. v. Unemployment Compensation Board of Review, 400 Pa. 440, 444, 163 A.2d 91, 93 (1960); Philco Corp. v. Unemployment Compensation Board of Review, 430 Pa. 101, 104, 242 A.2d 454 (1968).

Applying this test to the present factual situation we hold that the work stoppage which commenced on January 2nd unfolded into an illegal lockout on January 6th because of the conduct of the employer on that date. Accordingly, appellants are entitled to unemployment compensation benefits for the period commencing January 6th and ending when the work stoppage ceased. However, we do find and so hold that during the period January 2nd to January 6th the work stoppage was the result of a labor dispute Other than a lockout and compensation benefits must be denied in accordance with Section 402(d) of the Act.

It cannot be disputed that the employer, by its proposal of December 20, 1968 offered to keep the company open and have work available under the terms of the then existing contract. But it is equally undeniable that the Association agreed to the suggestion of the Federal Mediation and Conciliation Service for a ten- day cooling off period. This acceptance of a cooling off period was a clear manifestation by the Association of its willingness to continue the status quo. The Company refused, without explanation, to consider the proposal, and although it did operate the plant the first shift on January 2nd, it sent home employees still working the second shift. In the meantime, the employees at a meeting on January 2nd voted to stop work Until the Company responded to the request for the cooling off period. Finally, on January 6th, and by extraordinary coincidence, the return date of its Chief Negotiator, the Company announced that those employees involved in the dispute would not be permitted to return to work Absent a union-employer contract.

Under these circumstances, responsibility for the work stoppage cannot be indisputably attributed to either the Company or the Association for the period January 2nd until January 6th. This being so, compensation cannot be awarded during that period. During the preliminary stages of...