Appeals, Nos. 155, 156, 157, and 158, April T., 1960, by employer, from decision of Unemployment Compensation Board of Review, No. B-55864, in re claims of Kenneth M. Mattson et al. Decision affirmed.
Irving Olds Murphy, with him Gifford, Graham, MacDonald & Illig, for employer, appellant.
Sydney Reuben, Assistant Attorney General, with him Anne X. Alpern, Attorney General, for Unemployment Compensation Board of Review, appellee.
James Craig Kuhn, Jr., with him Wilner, Wilner and Kuhn for claimants, intervening appellees.
Before Rhodes, P.j., Gunther, Wright, Woodside, Ervin, Watkins, and Montgomery, JJ.
[ 194 Pa. Super. Page 309]
This is an appeal by the employer in an unemployment compensation case from an award of benefits to one hundred and five claimants who were striking employees who had been replaced during the strike. The Bureau of Employment Security, the Referee and the Board dismissed the contention of the appellant that such claimants were unemployed through fault of their own in that they voluntarily left their employment without a cause of a necessitous and compelling nature, within the meaning of § 402(b) of the Unemployment Compensation Law, 43 PS § 802(b).
The contract between the union and the employer expired on March 31, 1959, and when negotiations to execute a new contract failed, a strike was called with picket lines established April 1, 1959. This dispute came to an end on June 24, 1959. During the strike production was continued by the employer, using temporary and permanent replacements of those on strike.
The Supreme Court of Pennsylvania in Melchick Unemployment Compensation Case, 396 Pa. 560, 564, 154 A.2d 875 (1959),*fn1 held that "A striker continues as an employee during the strike and only removes himself from actual labor." This is true with the exceptions that the striking employee may establish that he has severed the employer-employee relationship. Oluschak Unemployment Compensation Case, 192 Pa. Superior Ct. 255, 159 A.2d 750 (1960), and except to the extent that a striker may be replaced during an economic strike. General Electric Company, 80 N.L.R.B. 510 (1948); N.L.R.B. v. Mackay Radio & Telegraph Company, 304 U.S. 333; N.L.R.B. v. Potlatch Forrests, Inc., 189 F.2d 82.
The issue here involves the interpretation of § 402(b) of the Unemployment Compensation Law, supra, the
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pertinent parts of which read as follows: "An employe shall be ineligible for compensation for any week - ... (b)(1) In which his unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature. ... And provided further, That the provisions of this subsection shall not ...