*1 the Appellants here were heroin distributing from their residence, which, standing if alone would be insufficient for cause, as finding probable being sufficient to revive stale Agent evidence obtained Bordeleau. My reading the affidavit of probable cause indicates the latest evidence obtained from by Agent Bordeleau which criminal be activity can inferred was obtained on December fully five months to the prior application for a search warrant. When in applying Tolbert standard a determi- probable nation of cause where some of evidence stale, given hand, at I facts find the observations Agent Bordeleau not to sufficiently be proximate time the date of the probable warrant to establish cause on their own. do I Nor find the information supplied by the confi- dential informant providing as sufficient evidence that the activity by Agent criminal up observed Bordeleau continued to the time of the issuance the search warrant —a condi- tion necessary to validate the stale evidence. I would finding therefore affirm the of the Superior Court on based well-reasoned opinion Tolbert. A.2d PENFLEX, INC., Appellee, v.
Kenneth al. BRYSON et and Commonwealth of
Pennsylvania Unemployment Compensation Review, Appellants.
Board of Supreme of Pennsylvania. Court
Argued April 1984.
Decided Dec. 1984. *6 Seus, Berke, Thomas E. Philadelphia, Bry- Jennifer for son, et al. Gen., Kupchinsky, Deputy Atty. Harrisburg,
John T. Comm/UCBR. NIX, C.J., LARSEN, FLAHERTY,
Before McDER MOTT, PAPADAKOS, HUTCHINSON, ZAPPALA and JJ. THE COURT
OPINION OF HUTCHINSON, Justice. appellee, Penflex, former
Appellants, employees Inc., appeal by allowance Commonwealth Court order reversing Unemployment Compensa- orders entered Board, turn, tion Board of Review.1 The had affirmed decisions of the Referee and the Office of Employment Security awarding unemployment compensation benefits to appellants. We now reverse Commonwealth Court and reinstate the orders of the Review Board. surrounding
The factual circumstances the instant contro- versy undisputed. appellants are The were members of a *7 bargaining represented collective unit by Plumbers Union Penflex, appellee Inc., Local 690. The and appel- Union lants’ entered into a employer, bargaining agree- collective ment which expired on June 1980. The parties engaged in failed continuing negotiations agree but on the terms of a new contract before 1980. July The Union advised its members not to in a engage Nevertheless, the stoppage. membership disregarded that work, report establishing advice and failed to lines picket at employer’s plant beginning the on 1980. The July Union had not notified the Federal Mediation and Concilia- tion of the contract dispute stop- Service before the work page required by as of the Labor Relations Management Act), (1947), Act (Taft-Hartley Stat. 136 (hereafter 158(d) (1976) “LRMA”).2 U.S.C.A. record § [The Penflex, appeals 1. On the motion of from the Review Board’s orders were consolidated order of Commonwealth Court dated February 1982. 8(d) provides, pertinent part, 2. Section in that: bargaining there is in effect a collective contract [W]here ... duty bargain collectively pаrty shall also mean that no to such contract, modify party contract shall terminate or such unless the desiring such termination or modification— (3) notifies the Federal Mediation and Conciliation Service within thirty days dispute, after such notice of the existence of a and simultaneously any agency therewith notifies State or Territorial disputes established to mediate and conciliate within the State or show, however, provision notice was any
does not itself, nor bargaining agreement written into the collective extending in that its provision agreement does it any show Consequent- in of such statutory term the absence notice.] on appellants’ employment terminated ly, 1,1980 illegal what it considered an participating for July 3, 1980, offered to return to appellants July strike.3 On However, accept did not their offer. appellee work. termination, of this appellants sub- Out work because unemployment compensation benefits sequently applied Law, Act of Unemployment Compensation to the pursuant 5, 1936, Ex.Sess., (1937) 2897, Second P.L. as December (1964 amended, Supp.1983-84). 43 P.S. 751 et & The seq. Employment Security initially determined that Office unemployment was caused a “lockout” insti- appellants’ (hereafter that, tuted there- by appellee “employer”) fore, 4(u) Law,4 under Sections (hereafter were for com- appellants “employees”) eligible beginning ending the week 1980. pensation July to the employer appealed Unemployment Compensa- The strike, that, arguing by engaging tion Board of Review occurred, agreement Territory dispute provided where the no has time; by that been reached effect, (4) resorting continues in full force and without to strike *8 lock-out, existing and for or all the terms conditions of the contract sixty days given period after such notice is or until the a contract, expiration date of such whichever occurs later. finding employ- 3. The Review Board affirmed the Referee’s that the relationship July finding supported ment terminated 1980. This employees the notices of dismissal to contained in the record. ”[c]ompensation payable any 4. Section 401 states that shall be to employe unemployed” provided speci- who is or becomes that certain 4(u) fied conditions are met. See P.S. 801. Section defines § reads, "unemployed” part, in relevant as follows: (I) unemployed respect any An individual shall be deemed with to (i) during performs remunera- week which he no services for which (ii) respect paid payable tion is to him with to which no or him, (II) paid payable respect any remuneration is or or with to paid week of less than his full-time work if the remuneration payable or weekly respect to him with is less than his such week plus partial benefit rate his benefit credit. 753(u). 43 P.S. § for initial ineligible employees former were its the Unemployment virtue of Section any an for employee compensation denies Law which stoppage is due to a unemployment his which week “[i]n (other than a of a work, dispute exists because labor which at lockout) premises or other at a establishment factory, 802(d). last 43 P.S. employed____” he is or was which partic- employees’ further that its employer argued The 8(d) of the in of Section stoppage in a work violation ipation misconduct, employees that the LRMA constitutes willful of that willful misconduct terminated on account were under ineligible for benefits that, they remain consequently, 402(e).5 that, Referee hearing, initially the observed Following had ex- agreement already parties’ bargaining since the not the usual stoppage 1980 work was July pired, strike, ie., spite which occurs “wild-cat” in an extant collec- provision lockout” of a “no strike —no He therefore concluded bargaining agreement. tive of contract and was the strike did not constitute a breach illegal not for that reason. in a that participation
The Referee further determined did not of the fedеral labor statute strike violation meaning of Section willful misconduct within establish 402(e) Compensation Law. Pennsylvania’s Unemployment comply an failure to employee’s The Referee reasoned that 8(d) re- of Section requirements notice thirty-day with of his purposes status for employee only sults in his loss of to contest his dismissal before right LRMA-conferred 402(e), 402(d), disqualification provisions 5. Section like is one of contained in the Law and states that: any ineligible compensation week— employe for An shall be discharge temporary or unemployment is due to his In which his connected with his suspension work for willful misconduct from *9 work, "employment" as irrespective work is of whether or not such act____ defined in this 802(e). 43 P.S. Therefore, the Referee practice.6 as an unfair labor NLRB that, effect, has employee rule who any refused to protected in a not the LRMA engaged stoppage by work his to benefits automatically right pursuant forfeits 402(e) Pennsylvania’s Unemploymеnt Compensa- Section tion Law. if the addition, employees’
In the Referee noted that for his presented the factual circumstance only strike were consideration, for under they ineligible would be benefits 402(d). However, the Referee further noted that Section employees day terminated the on the same employer he ruled that the cause stoppage began. Accordingly, stoppage was not a work employees’ unemployment of the but, instead, their dispute, discharge from a labor resulting Therefore, he affirmed the Office of employment. from compensation award. Employment Security’s reasoning The Review Board with the Referee’s agreed short, In the compensation and affirmed his determination. comply authorities determined that the failure to with LRMA, notice terminat- provision Section before not, facts, ing the contract did on these constitute willful 402(e) Unemployment under of our Com- misconduct the Board’s pensation employer appealed Law. The then decision to Court.7 Commonwealth Court Commonwealth did employees held that the work initiated concluded, therefore, constitute misconduct and willful under compensation were Sec- they ineligible 402(e). tion generally permits
6.
In this
we
that federal
labor law
connection
note
replacement
regard
of strikers without
to whether
their strike action
not,
Thus,
is,
practice.
may
or is
an unfair
economic strikers
be
labor
any
continuing
replaced
replaced,
expectation
em-
and if so
lose
they may
they
ployment
had when
went out on strike. N.L.R.B.
have
375, 379,
543, 546,
Co.,
v. Fleetwood Trailer
389 U.S.
88 S.Ct.
(1967). Only
stoppage by
L.Ed.2d 614
if the work
the workers is in
constituting
response
practice, or
action
an unfair labor
law,
illegal
they
right
otherwise
do
have a federal
under
federal
N.L.R.B.,
employment.
Corp.
U.S.
continued
Mastro Plastics
v.
270, 278,
349, 355,
76 S.Ct.
285 aсknowledged not con- Commonwealth Court it was and that only fronted with a wildcat strike such strikes had to illegal stoppages amounting been held to be work willful court, prior misconduct under decisional law. the However Com., citing Houck v. Unemployment Compensation Review, Board 45 Pa. 405 Commonwealth Ct. of (1979), that, law, A.2d stated under the willful disregard misconduct includes “a of standards [of behavior] has a employer right expect which the to of his employee” that, striking 8(d), in violation of the by employ- Section See v. such disregard. Weimer ees here demonstrated Review, 176 Pa. Unemployment Compensation Board of 348, 354, 107 A.2d Superior Ct.
Commonwealth Court reasoned that: here, [W]here, Employer as and Union have undertaken engage to in collective under the of bargaining aegis the NLRA, then Employer right expect the has a that the 8(d) notice of provisions complied Section will be with to an strike. prior employee
Furthermore, if the accept ... we were Claimants’ striker, ineligible arguments, and Board’s then a under 402(d) Law, provisions the of Section would become eligible the exercise the upon by employer right discharge its the striker for violations by 8(d) striker of Section of the NLRA. therefore We would 8(d). strikers to encouraging be violate Section Such a would, believe, result we so inhibit the exercise an of its serious employer rights question federal that a invalidity under Clause of the United Supremacy States Constitution would be raised. 111, 116-17,
73 Pa. Commonwealth Ct. 457 A.2d (1983) (citations omitted) and footnote (emphasis original). disagree with
We Commonwealth Court’s determi nation that here employees disregard exhibited behavioral standards which their could reasonably expect of them and now hold that their in a participation in violation of of the LRMA does
not constitute willful within misconduct the meaning of Section 402(e) of our Unemployment Compensation Law. In reaching decision, our we are mindful of the circum- scribed scope of appellate review.
It is now аxiomatic in an unemployment compensation case, that the findings Board, fact made or by the referee be, as the case may are conclusive on appeal long so as record, whole, taken as a contains substan- *11 tial evidence to support (citations those findings, omit- ted) The appellate duty court’s is to examine the testimo- in the ny light most favorable to the party whose favor found, the Board has giving that party benefit of all inferences that can logically and reasonably be drawn from the if testimony, to see substantial evidence for the Board’s conclusion exists. Com.,
LeGare v.
Unemployment Compensation Board of
Review,
72, 76,
498 Pa.
444
1151,
A.2d
(1982)
1152-53
v.
(quoting
Taylor
Unemployment Compensation Board
Review,
351, 355,
829,
474 Pa.
378 A.2d
831 [1977]). Our
of
review is further constrained by policy considerations un-
derpinning the Unemployment Compensation Law.
“This
Act
designed
was
to alleviate the rigors of unemployment
and most
specifically
assuage the distress of the individu-
al unemplоyed worker.”
Services,
Gladieux Food
Inc. v.
Unemployment Compensation
Review,
Board
479 Pa.
of
324, 330,
(1978).
287 range of our we turn to inquiry, Given the limited the matter This case involves the interrelation before us. 402(d) 402(e) ship Pennsylvania between Sections Law, 43 Unemployment P.S.
802(e), Ordinarily, tempo where a claimant is respectively. a result of in a rarily as his involvement “unemployed” 402(d) governs labor-related the deter activity, only Section receiving mination from disqualified as to whether he is However, compensation provision applies benefits. rela only ongoing employer-employee the context of an A tionship. employee, strictly speaking, never striking leaves his employment.
A striker an the strike and employee during continues as only removes himself from actual labor. He retains his status at all again working employee times and becomes when the strike is terminated. Unemployment Compensation
Pramco v. Board Re- view, 560, 564, (1959). 154 A.2d Pa. 876-77 See Henwood, Sprague Compensa- & Inc. v. Unemployment Review, tion Pa.Superior Board Ct.
A.2d *12 402(d)
Section
if
terminates
applies only
employment
as a
In
dispute.
interpreting
result of a labor
the causation
requirement
to that
precedent
application
Section’s
to unem
ployment we have held that we “confine our
to the
inquiry
immediate cause and
the maze that
avoid
would result
from an
to ascertain indirect or
attempt
chronologically
Services,
remote causes.”
Food
Gladieux
Inc. v. Unem
Review,
330,
ployment Compensation Board
479 Pa. at
of
added).
(emphasis
cause his disqualification set unemployment forth in to him. See Sprague 402(d) inapplicable Section Henwood, & Unemployment Compensation Inc. v. Board Review, 112, 215 Pa.Superior (1965); 207 Ct. A.2d 269 of Oluschak v. Unemployment Compensation Board Re of view, 255, 192 263, 750, (1960).9 Ct. 159 A.2d Pa.Superior 754
Nevertheless, 402(d) Section does not “immunize an employee in a during stoppage labor from dispute the consequences his of willful misconduct connected with his work involving flagrant breach to duty his and to his union.” Yellow Co. Unemployment Cab v. Compensation Review, Board 170 Pa.Superior Ct. See H.J. Heinz Co. v. (1952).10 90 A.2d Unemployment Review, Board Ct. Pa.Superior (3) which, belong grade he and immediately does to a or not class of workers of stoppage, before the of the commencement there were occurs, employed premises members at the stoppage at which the in, interested, any of participating directly whom are or in the dispute. 802(d) added). (emphasis §
43 P.S.
example,
UnemploymentCompensation
For
in Oluschak v.
Board of
9.
r
Review,
255, 263,
(1960),
Pa.Superio
Ct.
159 A.2d
Superior
striking
ineligible
employee,
Court held
for benefits
402(d),
ineligible
Section
provision,
under
remains
under that
even if
presents
accepted
employ
he
evidence
show that
to
he has
alternative
during
ment
the work
he
unless
also establishes that he
permanently
employment
severed his
with his
employer.
former
determining
Legislature
402(e)
apply,
10. In
that the
intended
with-
exception,
provisions
Unemployment Compensation
out
to all
Law, the Court in
Cab
Yellow
reasoned that:
original
Unemploy-
in its
form was added to the
23, 1942,
April
ment
Law the Act of
60. And
P.L.
provision,
discourage
by compensa-
this
tion
strikes financed
intended
funds,
402(e)
part
was a
the law when
was enacted
29, 1945,
May
amending
denying
amendment of
compensation
The
P.L. 1145.
Act
unemployment
discharge
for
due
"willful
mis-
general
clearly
language,
unmistakably
conduct” is couched in
apply
Unemployment Compensation
intended to
to the
*13
Law all of
provisions,
exception, including
402(d).
its
language
without
"When the
plain
unambiguous
conveys
of a
statute
and
a
clear
meaning,
resorting
and definite
there is no
for
to
occasion
the rules
construction;
statutory interpretation
the statute must be
given
plain
its
meaning”:
Cartwright
and obvious
Com. ex
v.
rel.
638,
al.,
645,
Cartwright et
Pa.
350
289
82,
(1953).
...
329,
Accordingly,
employe
A.2d
84
“[a]n
unemployment compensation
his
to
be-
may
right
forfeit
though
even
the misconduct
of willful misconduct
cause-
is related to a
discharge by
employer
induced his
which
dispute.”
in a
v.
of work involved
labor
Weimer
stoppage
Review, 176 Pa.
Board
Unemployment
354,
(quoting
A.2d if the Generally, partic claimant’s misconduct, ipation the work constituted willful ineligible following discharge he remains for benеfits his 402(e); otherwisé, from under his dis employment 402(d) qualification under Section is lifted and he is entitled compensation.11 The here for our con specific question presented sideration is one of first We are asked to impression. strike, decide employee participation whether which is in violation of a LRMA purportedly provision designed incidence, reduce strike constitutes willful misconduct under language impression, plain 11. As a matter of first of the statute entirely respect striking employ- would not be clear with to whether a ee, 402(d), clearly ineligible who is for benefits under Section becomes eligible unemployment compensation being for on dismissed from However, employment participating long in the strike. line of striking employee longer subject decisions have held that a is no disqualification following under Section his dismissal eligible becomes for benefits unless his dismissal was for willful 402(e). meaning misconduct within the of Section See cases cited at response by way Thеse cases elicited no or amendment infra. Legislature. clarification from the *14 290 402(e) of the Pennsylvania Unemployment Compen-
sation Law. “Willful misconduct” bemay defined as: of disregard
an act wanton or willful of the employer’s interest, rules, a deliberate violation of employer’s disregard of standards of behavior which the employer has the to of his right expect or employe, negligence indicating disregard an intentional in- employer’s terest or of duties employe’s obligations to the employer. Detterer Unemployment Compensation Case, 291, 294, 168 Pa.Superior Sopko 886; Ct. 77 A.2d Case, Unemployment Compensation Pa.Superior 168 625, 598; Krawczyk 82 A.2d Unemployment Com- Ct. Case, 361, pensation Pa.Superior 175 104 Ct. A.2d 338. v. Unemployment Compensation Weimer Board Re- of view, 354, 176 Pa.Superior Ct. at 107 at A.2d 610. Employ- ee conduct which renders a claimant ineligible for benefits 402(e) under Section must “not merely be con- willful which appears duct contrary be inter- employer’s Compensation ests.” Unemployment Board Review v. of Co., National Aluminum 519, 22 Pa. Commonwealth Ct. 522, 527, (1975) 349 A.2d 529 in (emphasis original).
Our courts have consistently held employees participate who in violation of the terms of an existing bargaining collective agreement are deemed to have engaged 402(e) willful misconduct under Section are, therefore, ineligible unemployment receive com pensation benefits if they are Progress Manu terminated. facturing Co. v. Unemployment Compensation Board of Review, 165-66, 163, 632, 406 (1962); Pa. 176 A.2d 633 v. Unemployment Compensation Weimer Board Re of view, 176 609; Ameri Pa.Superior Ct. at 107 A.2d at can Viscose Corp. v. Unemployment Compensation Review, Board 251, 253, 173 Pa.Superior Ct. 98 A.2d v. (1953); H.J. Heinz Co. Unemployment Compensa 258 Review,
tion Board 324, 329, Pa.Superior 172 A.2d Ct. 94 Com., (1953); Bays v. Unemployment Compensa Review, tion Board 421, 423, 62 Pa. Commonwealth Ct. Com., v. (1981); 437 A.2d Moran Unemployment Ct. Review, 42 Pa. Commonwealth Board those approve We 257, 200, 400 A.2d decisions. existing bargaining is no there
Conversely, where *15 stoppage that a work held the courts have agreemеnt, making misconduct considered willful is not employees compensation benefits unemployment ineligible strikers Com., Unemployment Corp. v. if terminated. Birdsboro Ct. Review, Pa. 59 Commonwealth Board Compensation (1981). & 361, Sprague n. 4 See 4, A.2d 363 466 n. 430 Board Henwood, Unemployment Inc. v. (1965). A.2d 269 215 Review, Ct. Pa.Superior case, bargaining collective parties’ In the instant stop employees’ to the expired prior had agreement a not breach Therefore, strike was employees’ page. reason, not, illegal. How thus, for that and, was
contract
notice
thirty-day
ever,
give
failure
their union’s
an
8(d)
appar
LRMA constitutes
Section
required by
argues
The employer
law.12
of federal labor
ent violation
is appar
in a strike which
employees’ participation
that the
deemed “willful
must be
under federal law
“illegal”
ently
Com
Unemployment
the Pennsylvania
misconduct” under
directs our atten
disagree. Appellee
Law. We
pensation
However,
position.
Houck,
support
.its
supra,
tion to
notify
the Federal Mediation
appears that if a union does not
12. It
agencies having jurisdic
any
mediation
Service and
state
Conciliation
compel
question,
modification of
dispute in
a strike to
tion over the
subject to
illegal
law and the strikers are
under federal
the contract
Labor Relations
Workers v. National
dismissal. United Furniture
denied,
Board,
(D.C.Cir.),
S.Ct.
379 U.S.
F.2d 738
cert.
5, however,
who
workers
n.
There, struck in employees support of their efforts to have their employer recognize particular union local as their bargaining exclusive representative. time, At the petition to so certify the union was pending before the Pennsylvania Labor Relations Board. The employees were advised immediately that further unauthorized absences would result in dismissal. Several days later the employer discharged addition, the strikers. In the employer rejected the employees’ subsequent unconditional offer to return to work. Commonwealth affirmed Court the Review Board’s determination of under ineligibility 402(e) conclud- ing that:
Willful misconduct includes a disregard of standards which an employer right has a to expect of an employee. *16 Where a method exists for conclusively establishing rights which exist by contract, virtue of statute or we that, faith, beliеve absent bad an employer has ordinarily a right to expect his employees to utilize such methods rather than to resort to a disruptive strike.
45 Pa.
589-90,
Commonwealth Ct. at
In both case, Houck and the instant the striking employees were not bound by terms of a collective bargaining agreement. However, unlike the employees in Houck, the appellants here had no available statutory pro cedures by which could they achieve their demands. The means, stoppage was the only at their disposal by which they could show supрort for the position union’s at the bargaining Moreover, table. the employer at no time in the work continued participation that appellants warned here the Finally, in termination. result stoppage could which would language contains no apparently contract itself do language, of such we In the absence give warning. that precluded from discharged workers were not believe the their union’s fail- compensation unemployment law, that a notice, federal required only by ure to give beyond not extended certain would be contract for a term that term. meaningful there is no argues
The
that
appellee
disregard
in a strike
distinction
participation
between
statute and a strike which
procedures
state
prescribed by
To hold
disagree.
contravenes a federal
statute. We
labor
of federal law
in a strike in contravention
participation
402(e) would
constitutes
misconduct under Section
willful
case,
an
courts, in
to dеtermine whether
require
every
and,
so,
if
in fact occurred
alleged infraction of federal law
on account of the
illegal
whether the strike must be deemed
federal
attempt
apply
infraction.
such
to construe
Any
impermissible
constitute an
law
these situations would
of the National
regulatory
intrusion into the
jurisdiction
of the LRMA.
Board under Section 8
Labor Relations
In
Co. v. New York State
Telephone
New York
Labor, 440 U.S.
99 S.Ct.
Department
(1979)
of the court
(plurality opinion, judgment
L.Ed.2d 553
Stevens), the
announced Mr. Justice
United States Su
authorizing
held that a
York statute
preme Court
New
strikers,
did not
compensation benefits
unemployment
fa
bargaining policy
impermissibly conflict with collective
*17
in the
voring the free
forces established
play
economic
and, therefore, did not violate the
federal
labor statutes
Art.
Clause.13
United States Constitution
Supremacy
See
Co.,
Unemployment Compensation
Review v. Sun Oil
13. In
Board of
977,
589,
dismissed,
(1978), appeal
440 U.S.
99
476 Pa.
IV, cl. important 2. More for our purposes is the dictum contained in the That is opinion. directly applicable dictum to the case hereunder review: contention the NLRA at reject petitioners’
[W]e least States from awarding forbids in participants illegal strikes. See Communication (New Telephone Co.), Workers American York 208 (1974) N.L.R.B. (declaring of the strike part involved in this case Because such a rule would illegal). inevitably in ruling involve the on the legality States of strikes 8, under precisely it would invite the harms that the pre-emption doctrine is avoid. designed to at Id. n. at (emphasis original). S.Ct.
Furthermore, our determination that the employ-' striking ees’ the matter hand activities at were not willful misсonduct is unfair or impermissibly not discriminatory. A reading disqualification provisions the Unem ployment Compensation Law that the Legisla establishes ture intended to treat labor differently activities than indi vidual conduct or other activity. concerted
For 402(a) example, provides that an employe shall be for ineligible compensation any for week:
In which unemployment failure, his is due to his with- cause, out good either to work apply suitable ... or accept when to him by suitable work offered the employ- ment officer or any employer, irrespective of whether or not such work is in as this “employment” defined in act.... this shall cause disqualifica- ... not [HJowever tion waiting of a week or benefits ... when is offered by his and he not required accept the offer to the pursuant terms of labor-management contract or agreement, or to an pursuant established employer plan, or program policy____ Services, Review, Unemployment Food Inc. v. Board of 479 Pa. 388 A.2d n. 679 n. 2 The decisions in cases, Co., these Telephone dispositive and in New York are raised, preemption sponte, by sua issue Commonwealth See Court.
supra p. 282.
295 802(a) must be Section 802(a) (Supp.1983-84). P.S. 43 § 4(t) defines “suitable which with conjunction read that: states and which work” in which ... be deemed suitable work shall
[N]o vacant, strike, lock- due to a directly is offered position out, dispute---- other labor or Quaker Com., 753(t). Unemploy- v. See Oats
43 P.S. §
Pa.
Review, 65
Common-
Board
Compensation
ment
(1982);
Foundry
33,
Our is a today very narrow one which will not in apply most disputes. labor Specifically, employees are still ineligible for compensation benefits if they are dismissed in participation a wildcat strike or one that otherwise the where, contravenes laws of this state or during strike, the course of a legal the directs his employees to return to work or suffer dismissal. In these two situations the errant employees have no reasonable expectation of continued employment and it is nоt unfair to conclude, when their improper labor activities culminate in discharge, that their unemployment has been voluntarily induced.
The order of Commonwealth Court is reversed and the orders of the Unemployment Compensation Board of Re- view are reinstated.
LARSEN, J., files a Concurring Opinion. ZAPPALA, J., files a Concurring Dissenting Opinion. NIX, C.J., files a Dissenting Opinion.
LARSEN, Justice, concurring.
I agree with the both Majority Opinion Dissenting Opinion that appellants are entitled to com- unemployment pensation and therefore concur in the result. though even it also causes irreparable damage enormous and hundreds or persons thousands of innocent who are not involved in strike”) (emphasis original).
the in dissenting. ZAPPALA, Justice, concurring and opinion dissenting legal analysis I the join While with him as to Nix, disagree I Mr. Justice authored Chief My terminated. employer-employee status when the Unemployment Com- the indicates that .the record review that employ- found a fact Board of Review as pensation Therefore, I find it July terminated on 1980. ees were concur to remand for determination unnecessary majority. the result reached Justice, dissenting.
NIX, Chief fails to analysis precisely majority’s In my judgment upon facts which resolution operative identify *20 fact, i.e., the Moreover, critical issue should turn. a this be- relationship point underlying employment in time the unit Penflex, bargaining of the Inc. and the members tween terminated, record does not the appear herein involved clearly us.1 It is the record establishes my opinion before Although appears parties able to 1'. it from this record that the were not upon bargaining agreement, the before agree a new record collective majority inadequate to when that fact occurred. The us is determine may relationship suggests employment the of the that termination July then 1st notified the have occurred when the striking employees on However, facts there are other of their dismissal. negotiations positively both in the record which еstablish that beyond July employment 1st. prospect of continued continued future employ- example, the reflects contacts between the For record further 3rd, 7th, during management July July the week ees and July on stipulation persuasive is found in the record 8th. Most is a that Anderson, (one claimants) Appeal No. Howard of the of In Re: W. 7, 80-1-C-478, during hearing referee on November 1980 before a it is wherein noted: discussion, attempt going stipulate to we’re As a result that employees were of the facts that all the claimants some basic Inc., Penflex, bargaining unit which was and all were members of represented which was the Plumber's Union Local union agent bar- bargaining with That collective for the unit Penflex. company, agreement
gaining between union and had been effect Negotiations had expiration had an date of June 1980. which negotiations company, which union and the been held between the However, agreement to continuing. the new the terms of are bargaining agrеement been expiring have not collective succeed agreed upon. added). (JC1) (emphasis Id. at
that the work was initiated employees on July consequently under section Law, Unemployment Compensation Act of December Ex.Sess., (1937) 2897, amended, Second P.L. as 802(d), P.S. not they were entitled to unemployment bene- fits during period of that dispute. labor
At some later point the underlying employment relation- Penflex, ship between Inc. and the bargain- members of this ing unit terminated. From the moment of that termination the former would then employees eligible have been for benefits, gained unless had they employment elsewhere. I Although am of the view that the bargain- members of the strike, ing participate unit did in a rendering thus them strike, ineligible during that I share with the that their majority opinion activities did not constitute willful misconduct that would bar their under recovery 402(e) section once the underlying employment relationship 802(e). was severed. 43 P.S. § I therefore remand would the matter to the Unemploy- ment Board of purposes Review for of deter- mining when the expectation of continued employment end- ed and the underlying employment relationship was sev- ered. I would direct the Board to award benefits from date, unless other impediments, present, precluded then such an award.
It is not unusual in the area of labor-management rela- tions that in differences arise the negotiations for collective bargaining agreements. Unfortunately there are times When those differences aré Fortunately, irreconcilable. in most resolved, instances are a they agreement new is reached and the differences are accommodated. The avoid- of ance a work stoppage during these and traumatic trying in periods However, is the best interests of all. are there situations where a strike or a lockout is the vehicle only capable Nevertheless, of encouraging negotiations. serious everything expectation From abоve it is clear there was an of employment long beyond July
continued future the date 1st seized upon by majority. the design to its rules society in interest it is the best encourage the of our activities to segment this governing a without work disputes resolution of these importantly, per- Most unemployment. the concomitant is to be relationship employment manent rupture obviously was legislature The avoided whenever possible. designing in a scheme societal objectives mindful of these has judiciary The for the benefits. payment employment provisions in those equal responsibility interpreting an design. full force effect to that give upon to turn appears in this case majority’s analysis The employ- in employer response the action of the taken doing, In so it obfuscates in a strike. participation ees’ in case. I critical issues this Under consider to be the what has to between facts a clear distinction be drawn these sets the terms and contract which bargaining collective employment the underlying employment conditions Moreover, fails to consider majority relationship. to the facts of this case. application rule2 and its
Vrotney create, does not nor agreement bargaining A collective rela- destroy employer-employee termination does its Rather, agreement merely bargaining a collective tionship. that govern and conditions which will the terms establishes In Case during agreement. the life of the J.I. relationship 576, 88 N.L.R.B., L.Ed.2d 321 U.S. S.Ct. Co. v.
(1944), Supreme Court observed: the United States repre- and the bargaining
Collective between union, in an accord unit, results usually sentatives of a hiring pay and work and govern as to terms which will however, not, a contract unit. The result cases; no has a job by in rare one except employment ordinarily individual obligation any reason of it and no The negotiations into existence from it alone. comes result what has often management union and between Case, Vrotney Unemployment Compensation See 400 Pa. 444- 2. 163 A.2d 93-94 *22 300
been called, a agreement trade rather than a contract of employment.
Id. at 334-35, 64 at 578-79. S.Ct. Accord, Amalgamated Street, Association Electric of Railway and America, Motor Employ. Coach Div. 85 v. of Pittsburgh Co., Railways 219, 223, 734, 142 393 Pa. A.2d 736, cert. denied, 882, 123, 358 79 112 U.S. S.Ct. 3 L.Ed.2d (1958). Thus, during a work stoppage precipitated by the inability of the parties negotiate a new collective bargain ing agreement prior to expiration old, the the employ er-employee continues; relationship actual only work has ceased. From the expiration of the bargaining collective agreement, during period the of negotiation of the new contract, the underlying employment relationship continues and is restructured terms of the new collective bargaining agreement that results.
By promoting continuation of the commercial enterprise
during the period
expiration
between
of a
bargain
collective
ing agreement
suсcessor,
and the negotiation of its
applica
tion of
Vrotney
commercial,
rule
avoids
economic
and social dislocation that invariably ensues from produc
tion interruptions. Vrotney Unemployment Compensa
Case,
tion
440, 444-445,
400
91,
(1960).
Pa.
163 A.2d
93-94
Accord,
Commonwealth,
Fairview School District v.
Un
employment
Review,
Compensation Board
539,
499 Pa.
of
Borello v. Unemployment Compensa
(1982);
301
for
(1984),
test
determin-
480,
3. The at the time it application on the administrative level and same Vrotney designed policy was to the basic concerns involved. served encourage relationship the of the under terms continuation agreed parties during period previously the that difficult to agreement expiration the of the old and before the new between agreed upon. employment of had been Fairview School terms Pennsylvania, Unemployment Compen v. Commonwealth District sation Board of 547, 521; 546, Review, supra, 454 at 499 Pa. at A.2d of Co.,supra, UnemploymentCompensation Board Review v. Sun Oil of 522; 595, Unemployment v. 476 Pa. at A.2d at Borello 383 cf. Review, supra, Pa. at A.2d at Board 490 417 of Moreover, (1980). the units involved in the administrative compensation eligibility difficulty re decision have little would departed solving question the simple the factual of who first from agreement. expired Unemployment Compensation terms Co., at at supra, Board Review v. Oil 476 Pa. 383 A.2d Sun of requirements complicate we ascer 522. Once that decision with taining good justification party altering the or the of a the faith terms, infinitely more we create a standard difficult former administer, being corresponding such a without a benefit derived for modification. Apprentices Journeymen Local Plumbing Assoc. and United Commonwealth, Industry Unemploy Pipe-fitting and v. 486-487, Review, A.2d 1003- ment Board 505 Pa. analysis majority ignores High decision in 4. We notice that the its employеd employees If it would have been in this case. ineligible had been July have they when refused to work on 1st would accept regained eligibility offer to when the refused to their July return on 3rd. thus, Responsibility for work stoppage, the deter- mination of whether the is a or a strike lockout is established at its Actions inception. taken after the cessation of work erase activity cannot the initial respon- place sibility positions in the parties they previ- ously otherwise, If occupied. it were for responsibility work stoppage would be subject repeated change. A lockout on Monday could be a strike on Wednesday, a lockout on again Friday, and so on and so forth. This would to encourage parties tend jockey continually *24 position the of expense negotiations at sincere toward a settlement____ Fixing responsibility at the outset forces parties the to act responsibly, sincerely good faith at the a stages potential initial of work stoppage. Id., at (Larsen, Pa. 479 A.2d at J., 972-73. Nix, dissenting, joined C.J., J.) Zappala, Thus, the salutary rule of Vrotney, heretofore consistent- ly applied Court, this should remain the exclusive test determining for entitlement to benefits.
Vrotney, course, to situations the applies where under- lying employment relationship continues to exist. In a situation the where employer-employee relationship is total- following severed ly expiration the of a bargain- collective ing agreement, the person seeking is clearly “un- employed” as that term is defined in section 4 of the Act. 753(u) (1964). 43 P.S. Whereas the rule should Vrotney applied be in such a manner that the initial responsibility the stoppage for work controls the status of the employee for unemployment compensation purposes that during peri- where continues, od the employment relationship different situation is presented the moment the contract underlying is In employment severed. that employees instance thе are and their unemployed status for unemployment compen- sation is purposes properly at that point reevaluated. Ab- a showing sent the severance the employment resulted the relationship from willful on misconduct the he or eligible she for part employee, would be 402(d) Vrotney presuppose the con- benefits. Section underlying employer-employee relationship tinuation of the do not extend to individuals who are no longer and thus employed.5
In the case the status first quo disrupted by instant was when withheld their services and set employees they up lines, union, picket contrary to the advice of their on July Vrotney 1980. Thus under work was strike and the are not entitled to benefits for the employees period during which refused to work. Their they July offer to return to and its rejection by Here, however, should not affect that determination. at point negotiations some further terminated and the underly- ing employment relationship ended. Such condition .altеred would then a reevaluation of the justify claimant’s status unemployment compensation purposes. record,
On this it cannot be determined precisely when negotiations ultimately prospect were abandoned and a return to work no existed. A remand longer Board for that purpose proper. As of that time section *25 no longer was since the cessation of work was applicable, rather, no due longer dispute, labor but from that resulted point, from the severance of the rela- employment Further, I tionship. agree with the conclusion majority’s that this record does not showing establish a that discharge resulted from willful misconduct as described 402(e). subsection I
Accordingly, would remand with instructions instant should determined to entitled appellants be be it employment from date that is found that the ceased, if relationship they qualified otherwise for benefits. unemployment "discharge" 5. Where results from or severance from employment, analysis Vrotney inapplicable by definition be analysis only "unemployment cause that is utilized where is due to dispute. . . .” of work which exists because of a labor 43 P.S. 802(d).