September 11, 1958
WESTINGHOUSE ELECTRIC CORPORATION
UNEMPLOYMENT COMPENSATION BOARD OF REVIEW (NO. 1). (ACCURTI UNEMPLOYMENT COMPENSATION CASE.)
Appeal, No. 35, April T., 1958, by employer, from decision of Unemployment Compensation Board of Review, Appeal No. B-4-L-1365A, Decision No. B-45706, in re claims of Dante Accurti et al. Decision reversed.
John G. Wayman, with him Elder W. Marshall, James H. Hardie, W.D. Armour, and Reed, Smith, Shaw & McClay, for appellant.
Sydney Reuben, Assistant Attorney General, with him Thomas D. McBride, Attorney General, for Unemployment Compensation Board of Review, appellee.
Benjamin C. Sigal, for appellees-intervenors.
Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.
[ 187 Pa. Super. Page 393]
OPINION BY RHODES, P.J.
This appeal by Westinghouse Electric Corporation is from a decision of the Unemployment Compensation Board of Review allowing benefits to employes at its East Pittsburgh Works and its Homewood Works in and about Pittsburgh.*fn1 The board concluded that they were unemployed by reason of a work stoppage which was a lockout.
Westinghouse Electric Corporation v. Unemployment Compensation Board of Review (No. 3), No. 36, April Term, 1958, No. 93, October Term, 1958. Claim of Allman.
Westinghouse Electric Corporation v. Unemployment Compensation Board of Review (No. 4), No. 37, April Term, 1958. Claim of Gray.
The labor dispute arose when the company, after notice to the union and its employes, began a survey of work performed by day workers in the plant in East Pittsburgh. The union objected to the survey on the ground that the company had no right to make such survey under the terms of the existing collective bargaining agreement.
The claimants are members of Local 601 of the International Union of Electrical, Radio and Machine Workers, CIO (IUE), which is the bargaining agent for approximately nine thousand five hundred production
[ 187 Pa. Super. Page 394]
employes at the two divisions of Westinghouse here involved. Approximately two thousand two hundred fifty of the production employes are known as "day workers" who are paid on an hourly basis. Their function is to provide services such as the operation of the cranes and elevators, moving and transporting materials, and sweeping. The remaining seven thousand two hundred fifty employes are "incentive workers" who are engaged in actual production and are paid on an incentive basis. In May, 1955, the company notified the union that it desired to make a survey of the work performed by day workers in the plant at East Pittsburgh for budgetary reasons and for the purpose of improving methods of operation. In June, 1955, the company began making a survey of ten or twelve workers employed in one section of the plant. The union objected on the ground that the company had no right to make a survey of day workers. The union also endeavored to obtain a commitment that the survey would not result in the layoff of any employes; the company refused to make such a commitment, and said that the survey might result in the elimination of workers as a result of changing methods developed therefrom. On June 17, 1955, the union filed a grievance. From then until August 1, 1955, numerous meetings were held by the company and the union during which the union requested that the survey be suspended and that the issue be arbitrated. The company, however, rejected this proposal.
In the latter part of July, the company determined that the information gathered by the survey was inadequate for its purposes; it then decided to make another test using different methods. On August 1, 1955, a representative of a department of the company began a study, with the aid of a watch, of the individual performance of one of the day workers. This worker was
[ 187 Pa. Super. Page 395]
observed for eight minutes, after which he refused to be observed and left work rather than submit to the time study. Nine other day workers left the same day as a result of the study. The following day one hundred thirty-three additional day workers walked out. Prior to this, time studies had not been used to measure the performance of the day workers; such studies were normally used on incentive workers to establish work standards which provided the basis for incentive payment.
On August 1, 1955, the day the second survey began, the company rejected a proposal that the survey be postponed for thirty days pending negotiations. Thereafter, on or about August 8, 1955, the union distributed leaflets stating that on August 7, 1955, the day workers had voted to strike and urged support of their strike by all of the membership. As a result about two thousand one hundred day workers stopped work; this was substantially all of such workers. Beginning August 8, 1955, the non-striking incentive workers were progressively furloughed because of their inability to work without the services normally provided by the day workers. On or about September 11, 1955, the work stoppage began in all the plants represented by the IUE. On September 15, 1955, the company and the union agreed that studies by the industrial engineering department would be limited to day workers in one section, and that there would be no changes in method, or in job classification, or decreases in personnel made as a result of such studies during the next sixty days; the dispute was thereby settled. Operations began to be resumed on that day, and on or about September 23, 1955, normal operations were in effect.
The bureau and the referee determined that the day workers and incentive workers were disqualified for
[ 187 Pa. Super. Page 396]
compensation under section 402 (d) of the Unemployment Compensation Law, 43 PS § 802 (d), because the work stoppage resulted from a labor dispute, and that there was no lockout. On appeal, however, the Board of Review reversed the decision of the referee and allowed compensation on the basis that the company's "interjection of a change in the working conditions precipitated the work stoppage and was the final cause thereof." The appeal to this Court by Westinghouse followed. The decision of the board will be reversed.
Section 402 (d) of the Law, 43 PS § 802 (d) provides: "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 labor dispute resulted from an alleged breach of the existing collective bargaining agreement by the company in making a study or survey of the day workers. To sustain claims for benefits it must appear that the employes were "unemployed through no fault of their own." Section 3 of the Law, 43 PS § 752.
Employes who cease work because of an alleged breach of contract by the employer are not entitled to compensation where the collective bargaining agreement provides a grievance procedure for settlement of such disputes (Glen Alden Coal Company v. Unemployment Compensation Board of Review, 168 Pa. Superior Ct. 534, 536, 79 A.2d 796), or where there are legal or equitable remedies available (Arbechesky Unemployment Compensation Case, 174 Pa. Superior Ct. 217, 222, 100 A.2d 396; Byerly Unemployment Compensation Case, 171 Pa. Superior Ct. 303, 90 A.2d 322; Morris Unemployment Compensation Case, 169 Pa. Superior Ct. 564, 569, 83 A.2d 394; Cassell Unemployment
[ 187 Pa. Super. Page 397]
of the board in the present case was in applying the holding of the Leto case as the universal test for the determination of the final cause and responsibility or fault for the work stoppage. The Leto holding, however, is not so broad in its application. The Leto case did not expressly or by implication overrule the line of cases exemplified by the Byerly Unemployment Compensation Case, supra, 171 Pa. Superior Ct. 303, 90 A.2d 322; nor did it purport, either expressly or by implication, to lay down a single mechanical test for determination of the final responsibility for the work stoppage.
The duty of the compensation authorities, as we have repeatedly said, is to determine whether the employes are unemployed through no fault of their own. If the employes have acted consistently with the desire to remain employed, they are entitled to compensation under the Law to alleviate the economic burdens commensurate with unemployment. In the Leto case the employer refused to permit the terms and conditions of the expiring contract to remain in effect for a reasonable time pending negotiation of a new contract; in fact, the employer withheld work from the employes for the sole purpose of gaining a concession from them. But, where a contract is in existence and the dispute concerns merely a breach of that contract by the employer, there are remedies available in the contract or in the courts for settlement of the dispute without any cessation of employment. Generally, none of these is available where the contract has expired and the dispute is in the negotiation of a new contract. In the former situation, although the employer may not be entirely without fault, there is fault attributable to the employes in failing to take advantage of the available remedies rather than create a status of unemployment. "The Unemployment Compensation Law was
[ 187 Pa. Super. Page 400]
not intended to promote stoppages of work by employes because of disputes with employers or bargaining agencies, which could be legally determined without any cessation of work. The fundamental idea of the Act is to provide a reserve fund to be used for the benefit of persons unemployed through no fault of their own. To call a suspension of work and act in concert to prevent a continuance of operations, without resorting to the legal measures open to determine the rights of the parties, amounts to a voluntary suspension of work, with the necessary consequences provided in the Act." Miller v. Unemployment Compensation Board of Review, supra, 152 Pa. Superior Ct. 315, 321, 31 A.2d 740, 743.
It is argued on behalf of claimants that the remedies available in the contract under the grievance procedure, as well as the available legal remedies, were not reasonably adequate because the time involved in following any of the procedures might have been too lengthy to prevent the company from completing the disputed survey. The obvious answer to this is that the board did not find that the available remedies were inadequate; in fact, the board did not consider the effect of the available remedies since it placed its decision solely upon the basis of the company's refusal to maintain the status quo, under its erroneous interpretation of the Leto case. However, while the grievance procedure may or may not have been adequate from the standpoint of the time involved, it is certain that if the grievance procedure had been followed to a conclusion in favor of the employes the survey whether complete or incomplete would have been a nullity under the contract. If the making of the survey was to ignore the contract and would have resulted in irreparable harm to the employes, as it is contended, there was available a remedy in equity. General Building
[ 187 Pa. Super. Page 401]
The federal assertion of power over labor disputes as contained in the Labor Management Relations Act and Norris-LaGuardia Act, 29 U.S.C.A. § 101 et seq., however, does not deprive the state courts from exercising in equity their traditional power to require performance of the contractual duties or by injunctive relief to prevent irreparable damage which may be brought about by the failure to perform such duties. Philadelphia Marine Trade Association v. International Longshoremen's Association, Local Union No. 1291, supra, 382 Pa. 326, 332, 115 A.2d 733. The jurisdiction of the National Labor Relations Board is not all inclusive. Weber v. Anheuser-Busch, Inc., 348 U.S. 468, 474-477, 75 S.Ct. 480, 99 L.Ed. 546, 554, 555; International Association of Machinists v. Gonzales, 356 U.S. 617, 78 S.Ct. 923, 2 L.Ed.2d 1018, 1021; International Union, United Automobile, Aircraft and Agricultural Implement Workers of America v. Russell, 356 U.S. 634, 78 S.Ct. 932, 2 L.Ed.2d 1030, 1033, 1038; MacDonald v. Feldman, 393 Pa. 274, 142 A.2d 1; Fountain Hill Underwear Mills v. Amalgamated Clothing Workers' Union of America 393 Pa. 385, 394, 143 A.2d 354. No unfair labor practice charge was filed in this case nor is one involved. The Pennsylvania courts are deprived of jurisdiction where the National Labor Relations Board affords an appropriate remedy; thus, if the Pennsylvania courts were deprived of jurisdiction because an appropriate remedy was available through the National Labor Relations Board, the fact that such an appropriate remedy was available but was not invoked by the employes before going on strike makes their unemployment non-compensable. If the matter was cognizable before the National Labor Relations Board and the continued making of the survey would have resulted in irreparable injury to the employes, the National Labor Relations Board itself had the power to
[ 187 Pa. Super. Page 403]
issue a cease and desist order or to obtain a temporary injunction to preserve the status quo. Garner v. Teamsters, Chauffeurs and Helpers Local Union No. 776, supra, 346 U.S. 485, 489, 74 S.Ct. 161, 98 L.Ed. 228, 239.
Although the strike initially involved only the day workers who objected to the survey, the work stoppage by these employes resulted in the furloughing of the incentive workers. The board found: "Beginning August 8, 1955 non-striking incentive workers were progressively furloughed because of their inability to work without the services normally provided by the day workers." The incentive workers as well as the day workers are ineligible for compensation because they were all members of the same labor union which was participating in, or directly interested in, the labor dispute which caused the work stoppage. Section 402 (d), 43 PS § 802 (d); Byerly Unemployment Compensation Case, supra, 171 Pa. Superior Ct. 303, 311, 90 A.2d 322; Curcio Unemployment Compensation Case, 165 Pa. Superior Ct. 385, 391, 68 A.2d 393; Stahlman Unemployment Compensation Case, 187 Pa. Superior Ct. 246, 144 A.2d 670.
The decision is reversed.