Appeal by employer, from decision of Unemployment Compensation Board of Review, Nos. B-87534 and B-87535, in re claim of Richard Bokoski.
George A. Burnstein, with him Kleinbard, Bell & Brecker, for employer, appellant.
Sydney Reuben, Assistant Attorney General, with him Raymond Kleiman, Deputy Attorney General, and Walter E. Alessandroni, Attorney General, for Unemployment Compensation Board of Review, appellee.
Ervin, P.j., Wright, Watkins, Montgomery, Jacobs, and Hoffman, JJ. (Flood, J., absent). Opinion by Hoffman, J. Ervin, P. J., and Montgomery, J., concur in the result.
[ 206 Pa. Super. Page 98]
This is an appeal by an employer from a determination by the Unemployment Compensation Board of Review allowing benefits to claimant. The Bureau of Employment Security, the referee and the Board all determined that claimant is entitled to benefits because his unemployment resulted from a work stoppage which constituted a lockout.
[ 206 Pa. Super. Page 99]
Claimant, Richard Bokoski, was an employee of appellant, Lee National Corporation,*fn1 and a member of Local No. 227, United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO.*fn2 The union and appellant executed a collective bargaining agreement effective June 30, 1961. Its expiration date was June 30, 1963. Pursuant to the terms of this contract, appellant, on April 18, 1963, and the union, on April 29, 1963, notified each other of their desire to negotiate a new agreement. Although several sessions were held prior to June 30, no new agreement was executed. The union, therefore, instructed its members to report for work on July 1, 1963, and on a day to day basis so long as appellant continued to operate under the terms of the expired contract. On July 16, 1963 the company submitted a letter to the union stating that operations of the Lee Division under the terms and conditions of the expired contract would not be continued. The letter also said that new terms and conditions would be effective on July 18.*fn3 The union rejected the new terms, but proposed to continue working under the expired contract. The union also informed the employer of its availability for further negotiations. Appellant displayed no interest in the union's proposal, and additional negotiations were not held until July 30, 1963. Claimant and his fellow-employees
[ 206 Pa. Super. Page 100]
did not report for work on July 16, 1963, and, thereafter, operations in the plant ceased.
The Unemployment Compensation Law 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. . . ." Act of December 5, 1936, P. L. (1937) 2897, art. IV, § 402; as amended by the Act of June 20, 1939, P. L. 458, § 2; Act of April 23, 1942, P. L. 60, § 4; Act of May 21, 1943, P. L. 337, § 1; Act of May 29, 1945, P. L. 1145, § 9; Act of June 30, 1947, P. L. 1186, § 2; Act of May 23, 1949, P. L. 1738, § 11; Act of August 24, 1953, P. L. 1397, § 4; Act of March 30, 1955, P. L. 6, No. 5, § 5; Act of December 17, 1959, P. L. 1893, §§ 8, 9, 10, 43 P.S. § 802.
It is settled law that the responsibility for a work stoppage is assessed against the party whose actions constituted the final cause thereof, and it is the duty of the compensation authorities to ascertain the final cause and responsibility. Irvin Unemployment Compensation Case, 198 Pa. Superior Ct. 308, 312, 181 A.2d 854, 857 (1962). The applicable test was stated in Vrotney Unemployment Compensation Case, 400 Pa. 440, at 444, 163 A.2d 91, at 93-94 (1960):
"[A]ll parties must be sincere in their desire to maintain the continued operation of the employer's enterprise . . . Neither an adamant attitude of 'no contract, no work' on the part of the employees, nor an ultimatum laid down by the employer that work will be available only on his (employer's) terms are serious manifestations of a desire to continue the operation of the enterprise. While either or both of these positions may legitimately be taken by the parties during the bargaining negotiations prior to the expiration of the existing contract when the contract has in fact
[ 206 Pa. Super. Page 101]
expired and a new agreement has not yet been negotiated, the sole test under section 402(d) of the Unemployment Compensation Law . . . of whether the work stoppage is the responsibility of the employer or the employees is reduced to the following: Have the employees offered to continue working for a reasonable time under the pre-existing terms and conditions of employment so as to avert a work stoppage pending the final settlement of the contract negotiations; and has the employer agreed to permit work to continue for a reasonable time under the pre-existing terms and conditions of employment pending further ...