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STEWART v. UNEMPLOYMENT COMPENSATION BOARD REVIEW AND ALUMINUM COMPANY AMERICA (04/12/72)

decided: April 12, 1972.

STEWART, ET AL.
v.
UNEMPLOYMENT COMPENSATION BOARD OF REVIEW AND ALUMINUM COMPANY OF AMERICA, INTERVENOR



Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Thomas A. Stewart, et al., No. B-107806, December 30, 1970.

COUNSEL

Bernard N. Katz, with him Warren J. Borish and Meranze, Katz, Spear & Bielitsky, for appellant.

Sydney Reuben, Assistant Attorney General, for appellee.

C. Arthur Wilson, Jr., with him Dale E. Williams, John J. Horgan and Eckert, Seamans, Cherin & Mellott, for intervenor.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Rogers.

Author: Rogers

[ 5 Pa. Commw. Page 146]

This is an appeal from the affirmance by the Unemployment Compensation Board of Review of a referee's dismissal of the appellants' claims for compensation.

The appellants are members of a union. They, together with other members, conducted a work stoppage at their employer's plant which lasted for a period of one week. As a result of start-up problems caused by the stoppage, some of the employees, including the appellants here, were not recalled for a period of days after the work stoppage had ended. The appellants claim unemployment compensation for the period between

[ 5 Pa. Commw. Page 147]

    the end of the work stoppage and their recall to employment.

The appellants concede that the issue has been definitively ruled upon against their position. Fort Pitt Manufacturing Co. v. Unemployment Compensation Board of Review, 176 Pa. Superior Ct. 162, 106 A.2d 672 (1954); Bako Unemployment Compensation Case, 171 Pa. Superior Ct. 222, 90 A.2d 309 (1952). Section 402(d) of the Unemployment Compensation Law, Act of December 5, 1936, P.L. (1937) 2897, as amended, 43 P.S. § 802(d), provides that an employee shall be ineligible for compensation for any week "[i]n which his unemployment is due to a stoppage of work, which exists because of a labor dispute. . . ." The Superior Court in the cases cited held that ineligibility is not limited to the period of the strike but includes the time after the strike reasonably required to restore the employer's plant to normal operations. See also Mosko Unemployment Compensation Case, 199 Pa. Superior Ct. 73, 184 A.2d 395 (1962). The appellants urge us to change the law by interpreting Section 402(d) so as to confine the period of ineligibility to the period of the strike. They advance two reasons for our doing so. First, they point out that prior to an amendment of Section 402(d) by the Act of June 30, 1947, P.L. 1186, the subsection provided for ineligibility for any week "[i]n which his unemployment is due to the voluntary suspension of work resulting from an industrial dispute . . . provided That this disqualification shall apply only to any week of unemployment which . . . includes any part of a period beginning with the day on which such suspension occurs and ending with (i) the last day of the fourth calendar week immediately following the calendar week in which such suspension occurs or (ii) the day on which such suspension was terminated, whichever is earlier." Act of May 29, 1945, P.L. 1147, § 9.

[ 5 Pa. Commw. Page 148]

The appellant argues that when the Legislature in 1947 rewrote this section, it intended to disallow benefits during the period of an actual strike, and that the new phrase "[i]n which his unemployment is due to stoppage of work, which exists because of a labor dispute . . ." meant only to exclude benefits during the period of the strike. This argument would be highly persuasive if the only change to 402(d) then made had been the deletion of the provision for four weeks of compensation during the strike period. However, the supplantation of the phrase "[i]n which his unemployment is due to a voluntary suspension of work resulting from an industrial dispute . . ." with the phrase "[i]n which his unemployment is due to a stoppage of work, which exists because of a labor dispute . . ." ...


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