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July 17, 1952



J. B. Millard Tyson, Irving R. Segal, Gilbert W. Oswald, Schnader, Harrison, Segal & Lewis, Philadelphia, for appellant.

William L. Hammond, Sp. Deputy Atty. Gen., Robert E. Woodside, Atty. Gen., for appellee.

Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.

Author: Hirt

[ 170 Pa. Super. Page 626]

HIRT, Judge.

We are all of the opinion that the reasoning, upon which the Board of Review awarded unemployment compensation in these cases, is specious. To affirm the orders would be the equivalent of saying that claimants who without authority induce an illegal stoppage of work amounting to a 'wildcat strike', following a groundless labor dispute fomented by them, nevertheless are not barred from unemployment compensation, after their discharge by their employer because of their willful misconduct in these respects. Section 402(e) of the Unemployment Compensation Law at last amended by the Act of May 23, 1949, P.L. 1738, 43 P.S. ยง 802, provides: 'An employee shall be ineligible for compensation for any week * * * in which his unemployment is due to his discharge or temporary suspension from work for willful misconduct connected with his work'.

North Garage is one of twenty similar garages from which Yellow Cab Company serves the City of Philadelphia. Two hundred forty drivers in the employ of this appellant operated out of North Garage, all of whom were members of Local 156 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, A. F. of L. with whom the appellant had a labor contract. By automatic extensions the contract had been in force since March 5, 1949. Claimants William MacCain and Vincent Muldoon were drivers in appellant's employ operating out of North Garage. They also were stewards elected by the members of the union to represent them at North Garage in ironing out current differences having to do with labor relations between employer and employee.

[ 170 Pa. Super. Page 627]

It was their duty also to notify the union of any violations of the labor contract. MacCain as steward represented the drivers on the day shift and Muldoon the night shift drivers.

Christmas day is one of the busiest of the year for appellant. To meet the problem of maintaining a sufficient number of taxicabs in operation it has been the custom of the appellant to ask drivers, who normally would be off duty under their schedules, to volunteer for work on that day. This was usually done in cooperation with the stewards of the day and night shifts who in turn submitted the names of men who desired to be off duty although scheduled to work on Christmas day. In this instance MacCain refused to cooperate but nevertheless submitted the names of 12 drivers who wanted to be off duty although scheduled to work on Christmas day 1949. The superintendent in charge of North Garage informed MacCain that he would excuse only three of the 12 men, to be selected in accordance with their seniority. On Christmas day 7 of the 9 men who had not been granted the day off remained away from work and accordingly were listed as absent without leave. They took the day off on MacCain's orders. Because of the failure of the 7 men either to report for work or advance reasons for their absence, disciplinary actions were brought against them and after a conference between the union and the appellant the 7 drivers were cited for a hearing on January 10, 1950. At the hearing they were 'indefinitely suspended' by appellant for their refusal to work as scheduled. Thereupon claimants MacCain and Muldoon, who represented them at the hearing, ordered the cab drivers then present not to remove the cabs from the garage. As the following shift reported for duty, the other employees joined in the work stoppage and finally two hundred and forty drivers refused to

[ 170 Pa. Super. Page 628]

    work. Of a total of one hundred and eighteen cabs in that location, not one of them operated from January 10 to January 16, 1950.

The existing contract between the appellant and the union provided 'Both parties agree that as long as this agreement is in force there will be no lock-out, strike, slow-down or refusal to perform his work or stoppage of work of any driver-employee of Company.' The contract also contained the procedure for determining all questions bearing upon conditions of employment or disciplinary measures, and provided for the submission of disputes to arbitration in the event that the Union and the Company could not agree. Louis Wissler, appellant's division manager having North Garage under his supervision, appeared at the garage on January 10th and interviewed both MacCain and Muldoon. As to what occurred the Board found: 'He asked them to order the men back to work and to arbitrate their grievance, if any, in accordance with the existing contract. The claimant [MacCain] and Mr. Muldoon refused to order the men back to their jobs, and Mr. Wissler then went out on the floor and ordered the men to return. The men refused and the work stoppage continued.' On January 13th MacCain with another striking driver went to the Germantown Garage of appellant employer. Their conversation with several employees there indicated that they were attempting to induce the employees in that garage to join in the strike. On appellant's complaint they were removed by the police. ...

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