63 Pa. Commw. 195 | Pa. Commw. Ct. | 1981
Lead Opinion
Opinion by
The petitioner, Local 730 of the United Association of Journeymen and Apprentices of the Plumbing and Pipe-Pitting Industry (Union), appeals, on behalf of 120 of its members, a decision of the Unemployment Compensation Board of Review (Board). This decision adopted a Referee’s order denying the claims on the basis that the claimants had engaged in a work stoppage other than a lockout and therefore were ineligible for such benefits under Section 402(d) of the Unemployment Compensation Law.
After a careful examination of the record, we find that the following summary of the Referee’s findings of fact was made without a capricious disregard of competent evidence.
In an unemployment case, the issue of whether a work stoppage results from a strike or from a lockout is a mixed question of law and fact, and the Board’s conclusion is, therefore, subject to review by this Court. Aluminum Company of America v. Unemployment Compensation Board of Review, 9 Pa. Commonwealth Ct. 368, 305 A.2d 389 (1973). The test to be applied in determining whether a work stoppage was due to a lockout or a strike was enunciated by our Supreme Court in the Vrotney Unemployment Compensation Case, 400 Pa. 440, 444-45, 163 A.2d 91, 93-4 (1960) as follows:
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? If the employer refuses to so extend the expiring contract and maintain the status quo, then the resulting work stoppage constitutes a ‘lockout’....
Inasmuch as the Union, acting on behalf of the claimants, did offer in its March 30, 1979 letter (the initial “peace move”) to maintain the status quo, we must, therefore, address a somewhat unique situation in unemployment compensation law: namely, whether or not an employer’s unilateral implementation of changes improving
The Union argues here that the Board erred in adopting the Referee’s decision because he had failed to consider the effect of the Unemployment Compensation Board of Review v. Sun Oil Co., 476 Pa. 589, 383 A.2d 519 (1978) decision which is factually identical to the instant matter. In Sun Oil, the employer unilaterally implemented some of its contract proposals after the collective bargaining agreement had expired and while negotiations were continuing, and our Supreme Court, in affirming our decision, held that the
The Employer, here, however, contends that Sun Oil is not controlling because: (1) the Employer in the instant situation, unlike the employer in Sun Oil, has improved the economic terms and conditions of employment for the employees and therefore the element of coercion prohibited by Vrotney and Philco Gorp. is not present; and (2) the claimants, by working for approximately 33 days under the implemented proposals ratified such proposals or acquiesced in their existence thereby creating a new status quo. We reject the Employer’s first argument on the basis that neither our Sun Oil opinion
As to the Employer’s second contention, we note that the claimants in Sun Oil continued to work for approximately 28 days after the employer there unilaterally implemented its proposals and our Supreme Court declined
The Employer further argues that the Union ratified the implementations through the actions of its chief negotiatior, who allegedly commented that he was not opposed to them. We have held, however, that proposed alterations tentatively agreed to, when made in the context of incomplete negotiations of a full
Finally, even if, arguendo, the implementations were approved by the Union, an employer who “alter [s] the balance [of the status quo] even after aiding in its maintenance for a considerable time, must still demonstrate that such action is essential to the continued operation of the company.” Sun Oil, 19 Pa. Commonwealth Ct. at 453, 338 A.2d at 713. The Employer here failed in this respect.
We believe, therefore, that this Employer’s unilateral implementation of its proposed economic terms and conditions of employment constituted a refusal to further extend the expiring contract and maintain the status quo and we will accordingly reverse the Board’s order denying the claimants herein benefits.
Order
And Now, this 15th day of December, 1981, the order of the Unemployment Compensation Board of Beview denying the claimants herein benefits is reversed and this matter is hereby remanded to the Board for the computation of benefits.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(d) reads, in pertinent part:
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 (other than a lock-out) at the factory, establishment or other premises at which he is or was last employed. .. .
Our scope of review in unemployment cases where, as here, the party with the burden of proof did not prevail below is to determine whether or not the findings of fact were consistent with each other,
The Union felt such “increases” were below what they desired.
19 Pa. Commonwealth Ct. 447, 338 A.2d 710 (1975) aff'd 476 Pa. 589, 383 A.2d 519 (1978).
In Unemployment Compensation Board of Review v. Haughton Elevator Co., 21 Pa. Commonwealth Ct. 307, 345 A.2d 297 (1975) we noted that “in order to maintain the status quo, it is not necessary for the employer to execute an actual agreement extending the expired contract, it must only allow work to continue under the terms and conditions of the expired contract” (emphasis in original). Here, it is obvious that the Employer did not do so.
We cannot substantiate the Employer’s contention in its brief, that the union in Bun Oil “strenuously opposed” Sun Oil’s (employer’s) implementation of its proposals, from a close reading of our opinion or the Supreme Court’s in that case.
Dissenting Opinion
Dissenting Opinion by
Where employees offer to continue to work under an existing contract and the employer refuses
Accordingly, I respectfully dissent.
In Unemployment Compensation Board of Review v. Sun Oil Co., 476 Pa. 589, 383 A.2d 519 (1978), cited in the majority opinion, there was an agreement between the employer and the employees to extend the terms of the expired contract on a day to day basis.