Appeal, Nos. 74 to 80, inclusive, Oct. T., 1958, by claimants, from decision of Unemployment Compensation Board of Review, No. B-45541, in re claims of George Schreiber et al. Decision affirmed.
Edward Davis and Sheldon Tabb, for appellants.
Sydney Reuben, Assistant Attorney General, and Thomas D. McBride, Attorney General, for appellee.
Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, and Watkins, JJ. (ervin, J., absent).
[ 187 Pa. Super. Page 136]
The claims for unemployment compensation filed by George Schreiber, and six others in similar position, were denied by the Bureau, the Referee, and the Board of Review upon the ground that claimants' unemployment during a labor dispute was not due to a lockout by the employer, wherefore they were ineligible for benefits under Section 402(d) of the Unemployment Compensation Law. Act of 1936, P.L.  2897, 402(d), 43 P.S. 802(d). Claimants have appealed.
Appellants were employed as servicemen by the Hygienic Sanitation Company, American and Wingohocking Streets, Philadelphia. They were members of the Warehouse Employes Union, Local 169. The employer and the Union were operating under a collective bargaining
[ 187 Pa. Super. Page 137]
agreement which expired on July 12, 1956. Under this agreement the Union was recognized as the bargaining agent for all employes except the office and clerical staff, guards, and "non-working supervisory employees". From January 1956 to April 1956, due to business expansion, the employer opened five new offices in the surrounding metropolitan area and promoted five servicemen to office managers. In May 1956 the Union gave written notice that it desired to bargain over a new contract. Negotiations ensued, and the only disagreement which developed was whether the servicemen who had been promoted to managers must still be members of the Union. Claimants continued working upon the same terms and conditions*fn1 until August 22, 1956, whereafter pickets were placed at the employer's plant.
The Hygienic Sanitation Company has been in business for thirty-five years. It started with one small office and now has twenty-five managers in four states. The managers purchase materials, hire and fire subordinates, give them instruction, assign their hours, and fix prices for their services. Servicemen are not paid a salary. Managers are paid a minimum salary plus a bonus based on net profits in their respective territories. The Union's position was that the managers were "working supervisory employees", and that the employer should continue checking off their union dues. The employer's position was that it was "left up to them" whether or not to continue union membership, and that the managers "wanted no part" of the Union. On October 9, 1956, after claimants had been given notice and failed to report, it became necessary for the employer to replace them or lose its service
[ 187 Pa. Super. Page 138]
business. The Union filed a charge of unfair labor practice, and later a charge of discrimination, with the National Labor Relations Board, neither ...