65 Pa. Commw. 33 | Pa. Commw. Ct. | 1982
Opinion by
The Quaker Oats Company, the employer, appeals a decision of the Unemployment Compensation Board of Review which affirmed a referee’s determination that the eight claimants are entitled to benefits under the Unemployment Compensation Law.
The essential facts are not in dispute. The employer laid off all the claimants before August 20, 1979. On August 20, the Cereal Workers Directly Affiliated Local Union 221 began a strike against the employer, which continued until November 27, 1979. Each claimant is a member of the union.
Throughout the strike, the employer continued operating with management personnel. By letters dated August 30, 1979, the employer recalled the claimants, effective September 4, 1979, to work in “utility” jobs which were vacant because the employees who held them were on strike. When laid off, the claimants had held positions other than “utility” jobs. None of the claimants reported for work September 4 in response to the letters. During the strike, the work tendered to the claimants at the employer’s plant was
The issues are whether (1) the claimants were ineligible for benefits under Section 402(d) of the Law
The referee and board concluded that Section 402(d) was inapplicable to the claimants, and that the work offered claimants was not suitable work because the jobs were vacant as a result of a work stoppage due to a labor dispute.
As to the first issue, the compensation authorities were correct. Because there is no question but that the pre-strike layoffs of claimants were caused by the unavailability of work at that time, Section 402(d) is inapplicable as decided in Barger v. Unemployment Compensation Board of Review, 46 Pa. Commonwealth Ct. 502, 504, 406 A.2d 1191, 1192 (1979) where we said:
*36 The clear language of the section provides that the cessation of employment must occur became of a labor dispute; where unemployment results from any other cause, Section 402(d) is inapplicable and therefore does not provide grounds for ineligibility. (Emphasis in original.)
As to the Section 402(a) issue, refusal of suitable work, the employer contends that, despite the plain words of Section 4(t),
Finally, the employer contends that, if claimants participated in the strike by picketing before their unemployment compensation benefits ran out, such participation would make claimants ineligible. However, where no new work is available, participation in a picket line will not, alone, change an employee’s unemployment status and will not result in ineligibility. Barger.
Accordingly, we affirm the order of the board.
Now, February 26, 1982, the orders of the Unemployment Compensation Board of Review at Decision Nos. B-182969, B-182970, B-182971, B-182972, B-182973, B-182974, B-182975, and B-182976 dated April 8, 1980 are hereby affirmed.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §§751-914.
43 P.S. §802(d). Section 402(d) provides that an employee, who is directly interested in a labor dispute, shall be ineligible for compensation for any week:
In which his unemployment is due to a stoppage of work, which exists because of a labor dispute (other than a lockout) at the factory ... at which he is or was last employed....
There is no dispute that claimants were directly interested in the labor dispute here.
43 P.S. §302(a). Section 402(a) provides:
An employe shall be ineligible for compensation for any week—
(a) In which his unemployment is due to failure, without good cause ... to accept suitable work when offered to him ... by any employer ... (emphasis added).
43 P.S. §753(t). Section 4(t) provides:
[No] Work shall be deemed suitable in which (1) the position offered is vacant, due directly to a strike, lockout, or other labor dispute ...