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BILLY BERRY v. COMMONWEALTH PENNSYLVANIA (02/09/78)

decided: February 9, 1978.

BILLY BERRY, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT. EDISON J. EBY, APPELLANT V. UNEMPLOYMENT COMPENSATION BOARD OF REVIEW OF THE COMMONWEALTH OF PENNSYLVANIA. MIKE HRYHORCHUK ET AL., PETITIONERS V. COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT



Appeals from the Orders of the Unemployment Compensation Board of Review in cases of In Re: Claim of Billy Berry, No. B-134574; Claim of Edison J. Eby, No. B-120909; and Mike Hryhorchuk, et al. No. B-143644.

COUNSEL

Harold I. Goodman, for appellants.

Michael Klein, Assistant Attorney General, with him Sydney Reuben, Assistant Attorney General, and Robert P. Kane, Attorney General, for appellee.

Judges Crumlish, Jr., Mencer and Blatt, sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 33 Pa. Commw. Page 566]

Consolidated herein are eighteen appeals from orders of the Unemployment Compensation Appeal Board (Board), seventeen of which are from orders of the Board denying appeals from determinations of the Bureau of Employment Security (Bureau) as untimely taken, while the remaining appeal is from the Board's denial of a request that a prior Board order be vacated.

All of the claimants here were formerly maintenance or production workers of the George Sall Metal Company (employer), where a work stoppage was begun on May 18, 1973 by Local 115 of the Teamster's Union, which was the bargaining unit representing the claimants. The work stoppage was the result of an alleged refusal by the employer to bargain collectively. All of the claimants filed for unemployment compensation at local offices of the Bureau, and the

[ 33 Pa. Commw. Page 567]

Bureau's district office ruled on June 22, 1973 that the claimants were ineligible for benefits under Section 402(d) of the Unemployment Compensation Law*fn1 (Law), 43 P.S. § 802(d), on the grounds that the work stoppage constituted a strike. Only one of the claimants, Edison J. Eby (Eby), took a timely appeal of this determination to the referee and Board, both of which affirmed the Bureau's determination.

On April 30, 1975, however, in a case involving a co-employee of the claimants who had also been engaged in the same work stoppage, the Board ruled that the stoppage had been a lockout rather than a strike and awarded benefits. The seventeen claimants who had not previously appealed then filed appeals of the Bureau's 1973 determinations denying them benefits, and after hearings on the issue of timeliness, the referee dismissed these appeals because they had not been filed within the ten-day appeal period then provided in Section 501(e)*fn2 of the Law, 43 P.S. § 821(e). On appeal to the Board the referee's decision was affirmed and these appeals were dismissed. Subsequent to the Board's decision that the work stoppage had been a lockout, Eby also filed a petition requesting the Board to vacate its prior decision in his case and award him benefits. The Board denied this petition by letter, stating that the Board's decision in his case, dated March 6, 1974, had become final ten days after that date pursuant to the provisions of Section 509 of the Law,*fn3 43 P.S. § 829. All of the claimants then filed timely appeals to this Court.

[ 33 Pa. Commw. Page 568]

Section 510 of the Law, 43 P.S. § 830, provides that this Court's scope of review in an unemployment compensation appeal is confined to questions of law and, absent fraud, to a determination of whether or not the findings of fact are supported by the evidence. The major issue raised here by the claimants is whether or not the Board had the authority to reverse or ...


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