Sidney G. Handler, Moses K. Rosenberg, Douglass, Handler, Rosenberg & Ware, Harrisburg, for appellants.
William L. Hammond, Sp. Deputy Atty. Gen.; Frank F. Truscott, Atty. Gen., for appellee.
E. Mac Troutman, Penrose Hertzler, Pottsville, for Philadelphia and Reading Coal & Iron Co., intervenor-appellee.
Before Rhodes, P. J., and Ross, Gunther, Wright and Ervin, JJ.
[ 175 Pa. Super. Page 499]
John C. Mehlbaum and ninety-two other individuals (hereinafter referred to as the claimants) were production workers and employee of the Philadelphia and Reading Coal and Iron Company, Pottsville (hereinafter referred to as the employer), which operates collieries at and known as Alaska, Locust Gap and Reliance, Pennsylvania. Claimants were all members of the United Mine Workers of America (hereinafter referred to as the union), which organization is their exclusive representative for the purposes of collective bargaining. The terms and conditions of employment were prescribed by a collective bargaining agreement between the union and the employer. This contract, although providing for holidays, did not designate Easter Monday in any year as a holiday. The employer in 1943, and continuing through 1948, scheduled work at the aforesaid collieries on Easter Monday of each year. During those years fire bosses reported and inspected the mines in preparation for the employes to come to work, and other supervisory employes likewise reported to the mines on said day, but the production employes at the several collieries in question failed to report for work on Easter Monday*fn1 In the years 1949, 1950, and 1951, the employer did not schedule any work on Easter Monday. On April 9, 1952, the employer posted the following notice at each of the collieries: 'Easter Monday -- April 14th, 1952: P. & R. Mines will be idle Monday, April 14th, 1952, because colliery employees, as usual, are refraining from work on this day'. The following news release was placed by the employer in the Mt. Carmel Item with a date line of April 10, 1952: 'Philadelphia &
[ 175 Pa. Super. Page 500]
Reading Coal & Iron Company made a special announcement today regarding the working schedule for the Easter holiday season. 'All P & R mines will be idle tomorrow because of the observance of Good Friday', the announcement stated. 'Because colliery employees are refraining from work Easter Saturday, April 12, the mines are not scheduled to operate that day, either. Easter Monday, the mines will again be idle because of colliery employees refraining as usual from work this day'.
Claimants filed applications for partial benefits for the claim week ending April 16, 1952. There was testimony on the part of the employer that work would have been furnished that week on Easter Monday, had claimants indicated that they were willing to work on that day. If claimants had worked on Easter Monday, the remuneration paid or payable for the week in question would have exceeded their weekly benefit rate*fn2 The claims were allowed by the Bureau, affirmed by the Referee, but reversed and partial benefits denied by the Unemployment Compensation Board of Review. This appeal followed.
The controlling issue is whether the claimants, after taking a positive position of not reporting for work on Easter Monday for a period of nine years, can now assert that their unemployment on that day in 1952 was involuntary, when the employer could and would have furnished work had claimants indicated their willingness to work. It is the position of their counsel that claimants were unemployed involuntarily on Easter Monday in view of the action of the employer
[ 175 Pa. Super. Page 501]
in not scheduling work for that day. He argues that 'the record is devoid of any evidence of any duty, obligation or practice on the part of the employees or their representatives to notify the employer of their willingness or desire to work'. On the other hand, the position of the employer is that it was under no obligation to make the idle gesture of scheduling work on Easter Monday when claimants had of their own volition established a customary practice of not working on that day. Counsel for the ...