Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Louis E. Chasse, et al., No. B-122198.
J. Anthony Messina, with him Fred Speaker, James T. Giles, Kenneth L. Oliver, Susan Katz Hoffman and Pepper, Hamilton & Scheetz, for appellant.
Sydney Reuben, Assistant Attorney General, for appellee.
Joseph R. McFadden, Jr., with him Francis A. Ferrara, Bernard N. Katz, Louis H. Wilderman, Warren J. Borish, Meranze, Katz, Spear & Wilderman, and Kassab, Cherry and Archbold, for intervening appellees.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Rogers and Blatt. Judge Mencer did not participate. Opinion by Judge Blatt. President Judge Bowman dissents.
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This is an action to determine the eligibility of approximately 1700 applicants for unemployment compensation benefits covering a period in which they were out
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of work during a labor dispute between their union and the Sun Oil Company of Pennsylvania (Sun Oil).*fn1
Section 402(d) of the Unemployment Compensation Law, 43 P.S. § 802(d)*fn2 provides that:
"An employee 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 lockout) at the factory, establishment or other premises at which he is or was last employed. . . ."
The referee and the Unemployment Compensation Board of Review (Board) found here that the work stoppage between March 19, 1973 and July 19, 1973 at the Marcus Hook refinery of Sun Oil constituted a lockout. The claimants were, therefore, awarded benefits. Sun Oil now appeals, however, alleging that the work stoppage was a strike so that benefits would be barred under Section 402(d) and that, in any event, federal law bars the payment of benefits to these employees.
The collective bargaining agreement between Sun Oil and the Independent Refinery Workers Union (IRWU) was scheduled to expire on January 6, 1973. Prior to that time the parties had been bargaining in good faith to reach a new agreement, but, by the contract expiration date, a new agreement had not been reached and the parties instead agreed to continue working on a day-to-day basis under the terms and conditions of the contract which had expired. Negotiations continued for an additional
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five weeks when on February 13, 1973 a Federal Mediator, which had been assigned to the case, certified that the parties had reached an impasse. On the same date, February 13, Sun Oil sent a letter to the IRWU expressing concern over "unreasonable delay in many matters of vital importance to Management and the employees. . . ." The letter continued, "Consequently, unless a Contract settlement is reached by 12:01 A.M. Saturday, February 17, 1973, the Company gives notice that it is hereby terminating the day-to-day Contract extension. . . . If the Contract so expires on February 17, 1973, we intend to begin implementation of some of our proposals. We will appropriately advise the Union from time to time as we begin these implementations." On February 16, 1973, Sun Oil notified the IRWU that effective February 18, 1973 the company would be implementing provisions of "our Contract proposals" on the topics of bidding for job vacancies, vacation pay, and training for temporary assignments. On February 23 Sun Oil again notified the IRWU of the "further implementation of our latest Contract proposal." This time, effective, March 4, the company indicated that it would implement provisions concerning adjustment pay, service, seniority, employee status, and job progression procedures. Still another notice, on March 14, announced implementation, effective March 25, of the new proposal as to the distribution of overtime assignments among employees.
On the following day, March 15, the IRWU circulated a news bulletin among its membership informing them of a strike vote taken by employees of the Sun Oil Refinery at Toledo, Ohio. This bulletin indicated that the Toledo workers rejected "an offer that was far better than what was offered to the IRWU of Marcus Hook." That evening the IRWU president, Anthony Arcomone, recorded a message announcing to the employees that the union executive board had authorized a strike referendum "on
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Management's final Contract offer." He stated, "If we reject, we will strike at 12:01 A.M., Monday, March 19, and join our Brothers in Toledo." A vote of the membership was then taken, and, by a nine to five ...