Appeal by employer, from decision of Unemployment Compensation Board of Review, No. B-63-3-F-574, in re claim of Benjamin Pulver, Jr.
Sheldon Rosenberg, with him Nogi, O'Malley & Harris, for appellant.
Sydney Reuben, Assistant Attorney General, for Unemployment Compensation Board of Review, appellee.
Jerome H. Gerber, with him Sidney G. Handler, and Handler and Gerber, for intervening appellee.
Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, and Hoffman, JJ. (Flood, J., absent). Opinion by Watkins, J. Dissenting Opinion by Ervin, P. J.
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This is an unemployment compensation case in which the employer-appellant, Sprague and Henwood,
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Inc. appealed from the decision of the Unemployment Compensation Board of Review that held a claimant, Benjamin Pulver, Jr. to be entitled to benefits on the ground that his unemployment was due to a severance of the employer-employee relationship by the employer. The Bureau and the Referee had found him ineligible for benefits under § 402(d) of the Unemployment Compensation Law, 43 PS § 802(d). It was stipulated that the decision in this case was to govern the cases of thirty-four claimants involved in the same problem.
The thirty-four claimants were employed as production workers by the appellant company. Their last day of work was April 5, 1963. The employer is engaged in the manufacture of diamond core earth drilling machines. The claimants were members of the bargaining unit represented by the International Association of Machinists, District 128, Local 1971. On January 8, 1963, the employer and the union began negotiating a collective bargaining agreement and about eighteen meetings were held between that date and March 23, 1963. No agreement was reached, a strike vote was taken and a work stoppage began on April 8, 1963. At that time only thirty production workers reported for work out of a total of one hundred fifty such workers. None of the claimants reported so that as of that time the claimants were unemployed due to a labor dispute and not entitled to benefits under § 402(d) of the Unemployment Compensation Law, supra.
On April 8, 1963, the employer sent a letter to the workers which read as follows: "You did not report for work this morning. This is to inform you that the Plant is open for its normal operations and work is available for you." This work was available under the same terms and conditions that existed prior to the strike vote and was the reason for the strike vote. At this date, therefore, the claimants were still unemployed due to a work stoppage as a result of the labor
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dispute. Some of the striking workers returned to work at various later dates but the claimants continued in their strike.
On June 20, 1963, and on various dates up to and including August 30, 1963, the employer-appellant sent a letter to the claimants which read as follows:
"You have been permanently replaced. In view of this we are enclosing a check in the amount of $4.69 which represents the balance in your bond account. We are also enclosing a check in the amount of $22.02 which represents the amount that you have contributed to the Sprague & Henwood, Inc. Retirement Plan from January 1, 1963 to the time you were permanently replaced. We are also enclosing forms to be completed by you and returned to ...