Appeal, No. 123, March T., 1958, from order of County Court of Allegheny County, No. A1152 of 1957, in re appeal of Charles H. Fortier, Jr. et al. Order reversed; reargument refused April 27, 1959.
Donald B. Heard, with him Reed, Smith, Shaw & McClay, for appellant.
James F. Wildeman, Assistant Attorney General, with him Yale B. Bernstein, Assistant Attorney General, and Thomas D. McBride, Attorney General, for Pennsylvania Labor Relations Board, appellee.
Before Jones, C.j., Bell, Musmanno, Jones and Cohen, JJ.
OPINION BY MR. JUSTICE BELL
This is an appeal from the Order of the County Court of Allegheny County which dismissed a petition for a review of the Order of the Pennsylvania Labor Relations Board directing that an employee be reinstated by her employer with back pay.
The employer, Charles H. Fortier, operates two industrial cafeterias in Coraopolis, Pennsylvania. The employee, Lydia M. Zimmer, was a counter girl at Plant No. 2 for several years and then worked at the same position at Plant No. 1. In September 1956, she was transferred from Plant No. 1 back to Plant No. 2. While at Plant No. 2 she became involved in a dispute with another employee, Pearl Pusatori. As a result of this argument, Mrs. Zimmer was transferred back to her old job at Plant No. 1 and she resumed her duties there on October 21, 1956. On October 22, 1956, there was a wildcat strike by the employees of Fortier in which she participated. The Union admitted that this was a wildcat strike. The Board found, based upon Mrs. Zimmer's own testimony, that later that day she refused an offer of her old job at Plant No. 1. The strike was eventually settled and all the employees except Mrs. Zimmer were called back to work.
There was no claim by the Union that Mrs. Zimmer had the right to be reinstated to a job in Plant No. 2, nor was any grievance filed by Mrs. Zimmer or her Union, as required by the collective bargaining agreement.
After a hearing in which both the employer and employee presented evidence, the Board found:
"17. That Lydia M. Zimmer did not return to work on October 29, 1956, because when she spoke to the Respondent's attorney, at the Respondent's request, she was informed that she was discharged because she called the strike and walked off the job.
"18.That the respondent informed the Bureau of Employment Security that Lydia M. Zimmer was discharged because there was a 'wildcat strike' and she was the stewardess, (although it was not ...