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UNEMPLOYMENT COMPENSATION BOARD REVIEW COMMONWEALTH PENNSYLVANIA v. NATIONAL ALUMINUM COMPANY (12/23/75)

decided: December 23, 1975.

UNEMPLOYMENT COMPENSATION BOARD OF REVIEW OF THE COMMONWEALTH OF PENNSYLVANIA
v.
NATIONAL ALUMINUM COMPANY, APPELLANT. (2 CASES)



Appeal from the Orders of the Unemployment Compensation Board of Review in cases of In Re: Claim of Glen N. Stewart, et al. No. B-124671; and In Re: Claim of Bart Barker, No. B-124672.

COUNSEL

Jacques M. Wood, with him Thorp, Reed & Armstrong, for appellant.

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.

Author: Kramer

[ 22 Pa. Commw. Page 520]

This is an appeal by National Aluminum Company from two orders of the Unemployment Compensation Board of Review dated February 27, 1975, which reversed a referee's disallowance of benefits to six claimants. Each of the six cases developed from the same factual situation, and the appeals have been consolidated.

On May 14, 1974, a forklift truck operator at National's plant was involved in an accident which resulted in his suspension pending an investigation. On May 16, 1974, the plant manager was informed by employes of National that if the suspended employe was not reinstated, other National employes would refuse to work. On the evening of that same day, the third shift employes of National failed to report to work and set up a picket line to induce subsequent shifts to join in the walkout. The picket line was effective and National's plant was completely shut down until May 21, 1974.

National had a history of labor problems, including wildcat strikes, which prompted the company to send a letter dated June 25, 1973, to all of its employes. The letter stated that the "no strike" provision in National's contract with the local union (of which the claimants were members) would be enforced through disciplinary action, and that any work disruptions would be deemed a "serious offense." Consistent with this prior expression

[ 22 Pa. Commw. Page 521]

    of policy, National discharged 24 of the employes involved in the May 16, 1974, walkout, including the six claimants.

Our scope of review in unemployment compensation cases is to determine questions of law, and, in the absence of fraud, to determine whether the findings of the Board are supported by substantial evidence. Myers v. Unemployment Compensation Board of Review, 17 Pa. Commonwealth Ct. 281, 330 A.2d 886 (1975).

At issue in this case is the application of Section 402(e) of the Unemployment Compensation Law, Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. ยง 802(e), which renders a claimant ineligible for benefits if his unemployment is due to a discharge for willful misconduct. Kentucky Fried Chicken of Altoona, Inc. v. Unemployment Compensation Board of Review, 10 Pa. Commonwealth Ct. 90, 309 A.2d 165 (1973). The Board's adjudication indicates that it believed National was required to prove, under Section 402(e), that the claimants "instigated or fostered" an illegal work stoppage. This was error. Participation in such a work stoppage is all that must be shown. Progress Manufacturing Company, Inc. v. Unemployment Compensation Board of Review, 406 Pa. 163, 176 A.2d 632 (1962). "Participation" includes honoring an illegal picket line*fn1 and failing to report for work solely because of the ...


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