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BYERLY ET AL. v. UNEMPLOYMENT COMPENSATION BOARD REVIEW ET AL. (07/17/52)

July 17, 1952

BYERLY ET AL.
v.
UNEMPLOYMENT COMPENSATION BOARD OF REVIEW ET AL.



COUNSEL

John G. Wayman, Gilbert J. Helwig, Reed, Smith, Shaw & McClay, Pittsburgh, for intervenor, Westinghouse Electric Corporation.

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

Author: Dithrich

[ 171 Pa. Super. Page 305]

DITHRICH, Judge.

Claimants, employes of the Westinghouse Electric Corporation at its Trafford Foundry Plant, were refused benefits under the Unemployment Compensation Law by the decision of the Bureau which was affirmed by the referee, whose decision was in turn affirmed by the Board of Review. Claimants were disqualified under § 402 of the Law, as amended by the Act of May 23, 1949, P.L. 1738, § 11, 43 P.S. § 802, which provides, inter alia: '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: * * *.' This appeal is a token appeal representative of 241 claimants.

Appellate review is performed by considering the testimony in the light most favorable to the party in whose favor the Board has found and if there is substantial competent evidence to sustain the findings of the Board they are binding upon us. Stillman Unemployment Compensation Case, 161 Pa. Super. 569, 56 A.2d 380; Hogan Unemployment Compensation Case, 169 Pa. Super, 554, 83 A.2d 386.

In November, 1949, a collective bargaining agreement was in effect between the employer and the United Electrical, Radio & Machine Workers of America, hereinafter referred to as UE. The UE was the bargaining agent for the employes at the Trafford Foundry and was to continue as such until April 27, 1950, at which time an election was to be held by the National Labor Relations Board to determine whether the UE or a rival union, the International Union of Electrical

[ 171 Pa. Super. Page 306]

Workers, CIO, would act as bargaining agent after that date. All employes at the Trafford plant were eligible for membership in either union. The two unions and the employer agreed that the existing steward structure, set up to handle grievances, would continue until the NLRB election was held. Under the collective bargaining agreement all wages lost by a shop steward in the processing of grievances during working hours were to be paid in equal shares by the employer and the union.

The Trafford Foundry is made up of various departments, and the employes are assigned to various sections according to job classifications. Peter Mundsinger, employed in section TF-49, composed of cupola operators, was a subdivision union steward representing the employes in TF-49 and other sections. Because the employer refused to pay Mundsinger for time lost in processing a grievance, the workers in TF-49 stopped work on January 9, 1950. On January 10, Mundsinger was discharged for the reason that he allegedly had precipitated the work stoppage and threatened to damage company property. A grievance protesting the discharge was immediately filed, but after a hearing held the next day, with no resultant change in the employer's position, the men in TF-49, who had reported for work, walked off the job and did not return to work until February 8, 1950, at which time the employer was notified that Mundsinger's discharge grievance would be carried to the next grievance level. There is no evidence that any grievance was made, based on the employer's refusal to pay Mundsinger for lost time. Claimants, none of whom worked in section TF-49, were unemployed during the period of work stoppage in that section.

There can be no doubt that a stoppage of work existed because of a labor dispute as defined in Curcio

[ 171 Pa. Super. Page 307]

Unemployment Compensation Case, 165 Pa. Super. 385, 390, 391, 68 A.2d 393, but claimants contend that the stoppage of work existed because of a lockout. It is argued that § 402(b) of the Law makes it clear that the term 'lock-out' in § 402(d) includes the situation where 'as a condition of continuing in employment' an employe would be required 'to accept wages, hours or conditions of employment not desired by a majority of the employes in the establishment or the occupation, or would be denied the right of collective bargaining under generally prevailing conditions'. It is further argued that since the rivalry between the unions produced confusion as to which union was the collective bargaining agent, the workers were forced to bargain on a group basis through individual shop stewards and, therefore, the company's refusal, in violation of its contractual obligation, to pay Mundsinger for time lost in handling a grievance created an intolerable situation wherein ...


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