*1 pro- for further is remanded and the case hereby reversed this opinion. with ceedings consistent relinquished. Jurisdiction A.2d 883 Petitioner, COMPANY, SONS

T.B. WOOD’S BOARD COMPENSATION UNEMPLOYMENT REVIEW, Respondent. OF Pennsylvania. Court Commonwealth Argued 1992. Aug.

Decided Appeal Petition for Allowance 3,May Denied *2 Zimmerman, petitioner. for Scott F. Wilt-Seibert, Counsel, respondent. Asst. for

Maribeth. Josem, Klenzing, Sr. T. for intervenor Walter William FRIEDMAN, JJ., NARICK, PALLADINO, and and Before Judge. Senior

PALLADINO, Judge. decision (Employer) appeals'a Company T.B. Wood’s Sons (Board) Board of Review Unemployment Compensation of the to Walter compensation benefits unemployment granting (Claimant). reverse. Klenzing We Chambersburg plant employed Employer’s was Claimant of the claimant for members United representative and is a Workers, (Union), is the collective Local 695 which Auto employees. 322 of agent Employer’s for bargaining bargaining agreement collective Employer and had a the Union on 1990. On expired April which an subsequently filed stoppage. in a work Claimant engaged On the compensation benefits. application 402(d) Compensation of the basis of subsection (1937) Sess., P.L. Law, Second Ex. Act of December amended, 802(d),1 §§ the Bureau Unem- 43 P.S. states: 1. That subsection (Bureau) Allowances Benefits

ployment the week including through and application Claimant’s denied work was continuing ground dispute labor a engaged was and the Claimant available a lock-out. other than granted which decision subsequent

The Bureau issued and the ending June for the week benefits Claimant perma- hired workers thereafter because weeks purportedly therefore employees, the Union nently replace rendering subsec- relationship and severing employment 402(d) inapplicable. tion referee, who to a the latter decision appealed on the ending June for the week

denied benefits appealed remained on strike. that Claimant ground evidence, reversed Board, additional taking without and the benefits. granted the referee *3 (1) whether two issues: presents Employer appeals2 findings of the certain supports evidence substantial hired had that, as of June which state 40-60% of the out and subcontracted workers replacement (2) striking em- whether plant; at the performed to work become to return not offered who have ployees after an em- benefits compensation unemployment to entitled workers. replacement hire begun has to ployer following facts: found the the Board part, In pertinent began employer June 5 to June 9. On or about to the Un- replace workers replacement permanent to hire stoppage. in the work engaged employees ion workers. 193 replacement hired employer 10. The any week— ineligible compensation for for employe shall be An work, stoppage (d) is due to a his In which lock-out).... (other dispute than of a labor which exists because Board is appeal decision of the an from a scope of review in 2. Our violated, rights were an determining whether constitutional limited committed, supported findings of fact are law was error of Hercules, Inc. evidence. substantial (1992). Ct. 146 Pa.Commonwealth Board of contracted out 40 employer permanently 11. Further at the work percent previously performed to 60 of the work site. if informed the Union that the Union employer employees decided to return to work the Union

employees workers. replace replacement would that it was employer 13. Further the informed sub- subcontracting the work out because the permanently cheaper. contractor could do the work out, employer longer the work no By contracting remaining-129 employees. to the made work available 16, 1990, work was no ending 15. As of week June [sic] they because had employees available to the Union longer the work was out. replaced been and because subcontracted as of effectively discharged 16. The Union no longer 1990 because work was ending week June [sic] available. eligibility unemployment compensa-

17. The claimant’s the week of following tion benefits for the weeks 1990, is not at issue. 28, 1991, at 1-2. The Board

Board Decision of October “it limited its decision to the week at further stated that has Therefore, has made no and will issue. following to the weeks respect draw no conclusions with Id. at 2. The Board held that 1990.” severed Claimant was entitled benefits upon hiring permanent replace- employment relationship *4 out work. permanently subcontracting workers and ment 12 14 through that of fact 10 and argues findings Employer supported by 16 are not substantial evidence through that the of 193 hiring there is no evidence of record to indicate 10), contracting of fact the out of (finding workers replacement 11), Employer’s informing the Union (finding of fact of workers non-replacement replacement of its on position 12) issue, i.e., had as of the week at (finding place of fact taken

221 16, 1990.3 ending the week June to indicate that the no evidence of record The Board cites (i.e., hiring replace- the findings in the challenged events work, workers, and subcontracting Employer’s out ment position non-replacement its on informing the workers) ending of the week had occurred as replacement 16, 1990. June de- testimony his own events does cite occurred, testimony but that challenged findings in the

scribed date occurred. Claimant not indicate on what the events does indi- that because referee creatively argues nevertheless hearing involved was period cated at the outset of the testimony, including all of his ending the week June based, necessarily challenged findings which are that on the sub- period. complicating to that time Further pertained finding fact unchallenged evidence issue is stantial least on basis of the statement finding supportable at to that “On or about Employer’s 3 of brief the referee page 7, [1990,] and Company began replace- to recruit hire June However, backpaddles in its Employer employees____” ment stating this that “there is one shred brief to court in the that the had hired even one Company evidence record Employ- let alone 16.” employee, by replacement Brief, at (emphasis original). er’s arguments

Faced these and an rec ambiguous with ord, the of whether substantial evidence question supports challenged the events had findings determination that challenges Employer’s findings through of fact 3. We note that findings inquiry challenges the same of fact 10 and involve its i.e., replace- support there of record to that the is evidence subcontracting of workers of work had occurred as of the ment out 1990? Notably, the occurrence of these events is all that is date of replacement controverted. concedes that "did hire it that, 10) (Finding and did the Union if its members workers No. inform work, they supplant replacement decided to return to would not work- 12).” (Finding Reply Employer, ers No. Brief of however, argues, evidence indicates that these that "the uncontradicted July, respectively, events occurred in October and not in June two 28a, (R. 55a, 60a)” by the Id. as found UCBR. *5 222 16, easily 1990 is not as of the week

occurred case, However, in of this we answered.4 circumstances of accepting not this issue. Even need resolve evidence, substantial Claim- supported by of the Board as fact ending June to benefits for the week ant is still not entitled the issue of entitlement recently This court addressed of following hiring benefits unemployment compensation Box Corrugated Acme replacement workers permanent Review, Board Unemployment Compensation v. Company (Acme (1989) I), A.2d 96 Ct. 131 Pa.Commonwealth v. Com Company Unemployment Box Corrugated and Acme Review, 131 Pa.Commonwealth Ct. pensation banc) (Acme II). (1990) (en I of Acme The facts 570 A.2d 100 expired II the same. Therein a labor contract and Acme are February on picketed and the Union January was the stoppage that the initial work concluding 1985. After lock-out, not a we addressed result of a strike and employees short hiring permanent replacement employer’s I in Acme began. We indicated ly picketing after a to return to willingness did not indicate until at the expired agreement under the terms of the stoppage the work remained earliest March time, hiring until of a strike at least result notwithstanding. replacement workers permanent II, in Acme wherein we held holding on this We elaborated that: unemployment denied com- employee may

a be striking 402(d) under he has made benefits Section pensation after to return to work under the terms an unconditional offer contract, a employer keep where an chooses to expired an proving entitlement A claimant has the burden of Unemployment Compensation compensation Hughes v. benefits. Review, (1980). Ct. More- 51 Pa.Commonwealth cases, over, various events occurred are the date the in strike/lock-out High Unemploy- determining to benefits. See critical entitlement (1984) A.2d 505 Pa. ment Board of (eligibility unemployment compensation determined on a week-to- basis). striking rather em- permit than replacement employee return to work. ployee to added).

Id. 101 (emphasis 570 A.2d at *6 however, not re- case, has satisfied the In Claimant this II finding no of Acme the made quirements Union) (or uncondition- at time made an any Claimant the that work, of made such an offer as to much less al offer to return Moreover, of 1990. our own review ending week June the a that such support finding reveals no evidence to the record 16, 1990. Nor ending the June an offer was made as of week made.5 that such an offer was argue does Claimant Indeed, made on the issue only determination ever work was made made an offer to return to whether the Union from the referee, 1990 letter July who considered a by constituted that letter to but determined Union conditional, unconditional, to return to a not an offer only Of work. See Referee’s Decision of 3.6 course, has July to to work made an offer return ending as of to the of the parties no relevance status 16, 1990, in Board decision week considered sole presently before us. Claimant, as of no exists that the Union or finding

Because to an unconditional offer the week made Acme II have work, been requirements return to concluding that by erred satisfied. The Board therefore subcontracting Employer’s hiring replacement workers force, work,7 relation- employment of their own severed to com- ship and rendered Claimant entitled benefits. pensation indirectly actuality, his concedes that no such In brief by (incorrectly) making an offer is not arguing made that such offer was invoking in Acme II. See Claimant's essential the rule articulated brief, at 17-18. July opinion the Union's 1990 letter express

6. We no on whether only work. a conditional offer to return to does constitute (where replace- argue II does not rationale Acme 7. Claimant hired) inapplicable employer, addi- is where an ment workers workers, we work. Nor do hiring replacement subcontracts out tion applicability of perceive difference is material to the that such factual II. the rule of Acme The Claimant that it would have been futile for argues to make an unconditional offer to return to work Union after “The informed the Union that if the employer to return to work the Union employees decided replacement Finding would not workers.” of fact replace “if only doctrine be invoked disagree. futility We definitely accepted it ... an offer would not be appears by management.” Corporation Philco Pa. 242 A.2d Compensation Board (1968). however, case, stoppage In this the work originated Additionally, with a strike the Union. referee found on the basis of uncontroverted evidence that offered each Union member the chance to return to (refer expired agreement work under the terms of the 39a) 14; 38a, *7 of fact R. and that some union finding ee’s (referee’s finding in fact return to work of fact members did 26a). 16; not the disregard R. Because the Board on uncontroverted findings of the referee which are based evidence, Attorney General Com Office of Board Pa. Commonwealth Ct. pensation (1987), these of the referee establish at to an uncondi Employer might receptive least that have been work, offer the Union to return to and that such an tional not definitely accepted by offer was not one which “would be Philco. management.”

Moreover, futility invocation of the doctrine under permit to require- the facts would be to eviscerate the central present cases that offer unemployment compensation parties ment maintain the status Philco. This func- quo. requirement referees, tions to the Board and this court to more permit party responsible stop- determine which is for a work easily require- We are therefore reluctant to abandon this page. ment, in cases such as the one where the especially present might of an unconditional offer to return to work have making continuing clearly party responsible established stoppage. work case of this under the circumstances we hold

Accordingly, inapplicable. doctrine is futility that the II, of Acme obligat- Union was satisfy the strictures To it This to return to work. unconditional offer ed to make an II been Acme having The requirements did not do. (i.e., Board (at by the period considered met least for time 16, 1990)), Board decision of the ending for the week is reversed. J.,

FRIEDMAN, dissents.

ORDER NOW, Unemploy- August order AND above-captioned of Review in the ment week for the application to the for benefits pertaining matter 16, 1990, is reversed. ending June NARICK, concurring. Judge, Senior in its failure majority except I of the join opinion substantial supported by is not find that the Board’s decision represented by the 322 unit evidence that as of the week effectively discharged Union/Claimant been either they replaced had ending June contracted out. the work of that week was or that work as a result acknowledges that Claimant ceased However, testimony accepted it stoppage. a work 16, 1990 work was Claimant that as replaced no since the Claimants were longer available out. was contracted *8 below, are findings Board’s set forth

For reasons testimony and the competent credible and contrary The upheld. a and therefore cannot be record taken as whole that the by established as found referee clearly record 30, 1990, was strike at its stoppage inception least herein at and to be a strike relevant continued 16, following be It should noted through of the work stoppage, of the contract and the start expiration by in or invoked no made the contract changes thus, and the status was maintained Employer, quo during 730, in appeal period. recently emphasized As Local United Journeymen Association and Apprentices Plumbing of of Pipe-Fitting Industry Unemployment Compensation Review, (1984), Board 505 Pa. 480 A.2d 1000 the sole for determining stoppage test whether a work is a lockout or a strike for purposes unemployment compensa- entitlement side, tion management, benefits is which union or first refused operations to continue under the status quo. quo status continued here and was not transferred into a lockout when began hiring replacement employees. See Acme Corrugated Unemployment Compensation Box Co. v. Review, 131 Pa.Commonwealth Ct. (1989). note, Board,

I as did the that the appealed only referee’s denial of benefits for “the week ending June 1990.” (Emphasis specifically The Board stated “... added.) findings Board has made no and will draw no conclusions regard with to the week following the week 1990.”

We start with the well-settled law Supreme as stated our in Court Treon v.

Review, (1982): 499 Pa. 453 A.2d

Although the weight given be the evidence and the to be credibility afforded the witnesses are within the fact, province of the Board as finder of ... such a body is ignore not free to overwhelming evidence favor of a contrary supported by result not the evidence. (citing Borello v. Unemployment Compensation Board of Review, (1980) 607, 618-19, 490 Pa. (empha A.2d deleted)). sis Similarly, opinion we are of the that the Board ignore the referee’s when they supported are effect, by overwhelming evidence. To the same our Court stated Hercules v. Unemployment Compensation Board 146 Pa. Commonwealth Ct. 604 A.2d (1992): 1162-1163

Where there overwhelming exists uncontroverted evi- upon dence which the referee findings, relies to make

227 evidence, the Board no additional the Board takes where to) (or such findings contrary disregard not make doing provides it reasons unless findings for referee so, Treon, from the record. Peak or reasons are clear those Review, Pa. 509 Unemployment v. (1985); Attorney see also 501 A.2d 1383 Office Compensation Board General (1987). (Em- Ct. 111 Pa.Commonwealth added.) phasis which with made referee presented

We are The Board heard no additional adopt. the Board failed It it it rendered its decision. had before testimony before the referee and the same record which was before precisely record, concluded us. on that the referee now before Based 16,1990 30,1990 from to June during period April that as striking employees. were and remained employees Further, replacements may permanent the fact that some that the referee found have been hired before June the strike which had not of the was the cause during period. into the relevant a lockout been converted Findings Fact adopted The Board referee’s representative employees was a of the and 5 that Union; bargaining the collective represented by Employer between the Union and the had an agreement 30, 1990; April negotiations a new expiration date bargaining were not successful before the agreement collective date, stoppage April thus in a expiration resulting 1990; that on about June 5 to June 7 that and employees began permanent replacement to hire However, of the unit work. and contracted out some Finding of Fact adopt or address the referee’s did inception at its was “strike” stoppage No. 6 that the work withheld services while work was of the expired under the same terms and conditions available bargaining agreement. collective Also, Findings Nos. adopt the Board did not the referee’s 11,12, 14,15 that the Union on in substance follows: first with the for the July communicated time since the work stoppage that unit employees were prepared to return to work under the same terms of the expired agreement and that bargaining faith; continue in good *10 the Employer responded 24, on July 1990 that some permanent replacements had been hired but jobs the were available for some of striking employees; that the Claim- ant accept did not the Employer’s offer and did not return to work on or as August on the same terms under the contract; existing 10, 1990, as of October replace- 193 ments of the unit work prior force of 322 to the work stoppage were hired and that a number of members of the Claimant’s unit did return to work during the work stoppage under the same terms and conditions of the expired contract.

The Board in Finding its 9No. found that the Employer on or 7, about June 5 to June began 1990 permanent hire replacements to replace the employees that in engaged work stoppage on April However, in its Findings No. 15 and it leaped incredibly the conclusion that the Employer hired 193 replacements and thereby effectively discharged the 322 unit employees as of the week of June 1991 because work was no longer available since they were replaced or the work was contracted out. These incredible findings fly in the face of the findings of the referee that the Employer hired 193 replacements out of a work force of 322 as 19,1990. of October Significantly, the Claimant acknowledged in its post-hearing brief to the referee submitted days three after the hearing of October 1990 that the Employer had begun to hire replacements on June 1990 and “the company present time employs approximately 170 such employ- ees who have permanently replaced Further, the Claimants.” in the Union’s brief after stating Claimant made an offer to return to work on July the Employer advised the Union on July that it hired permanent replacement and that there was work available for if not all a number of striking employees.

There is not a scintilla of competent evidence either record or the parties’ briefs that “the Union employees effectively discharged as of the week ending Based thereon available.” longer was no because work to the available longer work was no asserted “once cause for Claimant, the immediate concludes that the Board lack of work.” was the his Treon, findings are particular “if court in by As stated evidence, then inconsistent, unsupported by incredible however, not, The Board the Board must so indicate. are referee which made findings simply disregard testimony without uncontradicted consistent and upon based 461, 453 A.2d at 962. so.” Id. at doing its for stating reasons us, Board, disregarding although In the case before referee, any reasons provide did credible clear from is reasons so, as nor its doing requires, Treon the record. Peak. in error I that the Board was would find

Accordingly, conclusion of Fact and Findings to affirm the referee’s failing *11 striking unit' remained employees and the that the Claimant to June April 30 during appeal period, lockout when the not converted and that the strike was shortly before June hiring began replacements 1990. M.

Sixto NAVARRO Registered Cohen, Sandy GEORGE, Nurse and Doctor Individually Capacities et al. And In Their Official GEORGE, Sandy Appellant.

Appeal of Pennsylvania. Court of Commonwealth Argued April 1992. Aug.

Decided Appeal for Allowance Petition Granted