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UNEMPLOYMENT COMPENSATION BOARD REVIEW COMMONWEALTH PENNSYLVANIA v. ROBERT A. TICKLE (06/09/75)

decided: June 9, 1975.

UNEMPLOYMENT COMPENSATION BOARD OF REVIEW OF THE COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
ROBERT A. TICKLE, APPELLANT. UNEMPLOYMENT COMPENSATION BOARD OF REVIEW OF THE COMMONWEALTH OF PENNSYLVANIA, APPELLEE, V. DAVID A. NEWMAN, APPELLANT. UNEMPLOYMENT COMPENSATION BOARD OF REVIEW OF THE COMMONWEALTH OF PENNSYLVANIA, APPELLEE, V. PAUL R. MOHNEY, APPELLANT. UNEMPLOYMENT COMPENSATION BOARD OF REVIEW OF THE COMMONWEALTH OF PENNSYLVANIA, APPELLEE, V. AMBROSE G. MATZE, APPELLANT. UNEMPLOYMENT COMPENSATION BOARD OF REVIEW OF THE COMMONWEALTH OF PENNSYLVANIA, APPELLEE, V. ROBERT G. SHAMBERGER, JR., APPELLANT. UNEMPLOYMENT COMPENSATION BOARD OF REVIEW OF THE COMMONWEALTH OF PENNSYLVANIA, APPELLEE, V. ROY JOHNSON, APPELLANT. UNEMPLOYMENT COMPENSATION BOARD OF REVIEW OF THE COMMONWEALTH OF PENNSYLVANIA, APPELLEE, V. JOSEPH B. MATLACK, APPELLANT. UNEMPLOYMENT COMPENSATION BOARD OF REVIEW OF THE COMMONWEALTH OF PENNSYLVANIA, APPELLEE, V. JAMES F. BYRNE, APPELLANT. UNEMPLOYMENT COMPENSATION BOARD OF REVIEW OF THE COMMONWEALTH OF PENNSYLVANIA, APPELLEE, V. RALPH C. THOMPSON, APPELLANT. UNEMPLOYMENT COMPENSATION BOARD OF REVIEW OF THE COMMONWEALTH OF PENNSYLVANIA, APPELLEE, V. ALBERT A. LAPUSNAK, APPELLANT. UNEMPLOYMENT COMPENSATION BOARD OF REVIEW OF THE COMMONWEALTH OF PENNSYLVANIA, APPELLEE, V. DONALD F. SMITH, APPELLANT. UNEMPLOYMENT COMPENSATION BOARD OF REVIEW OF THE COMMONWEALTH OF PENNSYLVANIA, APPELLEE, V. THEODORE A. MATLACK, APPELLANT. UNEMPLOYMENT COMPENSATION BOARD OF REVIEW OF THE COMMONWEALTH OF PENNSYLVANIA, APPELLEE, V. WILLIAM R. SHONDELMYER, APPELLANT. UNEMPLOYMENT COMPENSATION BOARD OF REVIEW OF THE COMMONWEALTH OF PENNSYLVANIA, APPELLEE, V. LYMAN A. TICKLE, APPELLANT



Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claims of Robert A. Tickle, et al, No. B-121915.

COUNSEL

Richard I. Miller, with him Rothman, Gordon, Foreman and Groudine, for appellants.

Daniel R. Schuckers, Assistant Attorney General, with him Sydney Reuben, Assistant Attorney General, and Robert P. Kane, Attorney General, for appellee.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Kramer. President Judge Bowman concurs in the result only.

Author: Kramer

[ 19 Pa. Commw. Page 553]

This opinion involves 14 separate appeals filed by the appellants (claimants) named in the caption above from an order of the Unemployment Compensation Board of

[ 19 Pa. Commw. Page 554]

Review (Board), dated May 31, 1974, affirming its referee's decision denying unemployment compensation benefits to all 14 claimants.

Prior to June 29, 1973, the claimants were employed as garagemen and mechanics by the Schwerman Trucking Company (Schwerman) at two of its Pittsburgh truck terminals. Seven of the claimants (Robert A. Tickle, Joseph B. Matlack, Newman, Mohney, Matze, Shamberger and Johnson) were members of the Automotive Chauffeurs, Parts and Garage Employees, Local 926, and the other seven claimants (Lyman A. Tickle, Theodore A. Matlack, Thompson, Lapusnak, Smith and Shondelmyer) were members of Machinists Union, Local 1060. On Friday, June 29, 1973, the drivers of Schwerman at these two terminals, who were members of a separate union, viz. Teamsters Local 249, went on strike and picket lines were established at both terminals. All of the claimants were of a different grade or class of worker than the drivers who were involved in the strike.

From the record it would appear that all of the claimants reported for work at their next regularly scheduled starting times following the establishment of the picket lines. Upon their arrival at the terminals for work, they were confronted by pickets, some of whom had been drinking and had become rowdy and boisterous. Some of the pickets made brandishing steel balls and steel hammers. The strikers made numerous explicit threats of bodily harm to the claimants as they appeared at the terminals for the purpose of commencing their work. Two of the claimants were physically "grabbed" by the pickets and taken into a shed established on the picket line. While in the shed one of these men was told that if he didn't "keep the hell out," the pickets would "kick the shit" out of him. The other individual who was pulled into the shed was told that it he performed any work for Schwerman the pickets would "get" him "sooner or later." Numerous anonymous threatening

[ 19 Pa. Commw. Page 555]

    telephone calls were made to some of the claimants, and to some of their wives. Some of the claimants were told by strikers that if they crossed the picket line, their automobiles would be damaged. One of the claimants was told that if he crossed the picket line, he should take his suitcase with him because he would not be permitted to exit. Another claimant was threatened by the strikers with a broken arm if he crossed the picket line. The record firmly establishes that, during this same period of time, the same Teamsters Local 249 had been accused of actual violence, such as the throwing of steel balls through the windshields of moving trucks and the forcing of other trucks off the road. In at least one such case a truck driver was injured. This violence, off the premises of the terminals here in question, was reported by local newspapers, radio and television.

Alleging that these incidents caused them to fear violence and bodily harm, none of the claimants crossed the picket line for work, although apparently several of them were permitted to cross the picket line for the purpose of receiving their back pay. All 14 claimants filed claims for unemployment compensation benefits. All were denied benefits by the Bureau of Employment Security. All 14 filed timely appeals, which were consolidated for hearing. The referee affirmed the Bureau's decision and likewise denied benefits. Upon appeal to the Board, the matter was remanded for further testimony. At the second hearing the only evidence offered was to the effect that even if the claimants had been able to cross the picket lines there would have been, at the most, one week's work available for them, after which they would have been laid off. After this second hearing, the Board handed down its adjudication affirming the referee's decision denying benefits on the basis that the claimants did not meet the provisions of section 402(d) of the Unemployment Compensation Law (Act), Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. ยง 802(d). Section 402(d) of the Act reads as follows;

[ 19 Pa. Commw. Page 556]

"An employe shall be ineligible for compensation ...


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