Appeals from the Orders of the Unemployment Compensation Board of Review in cases of In Re: Claim of George Binder, et al., Nos. B-126918 through B-126924; and In Re: Claim of Melvin Saddic, et al., Nos. B-126925 through B-126931.
Francis J. Connell, III, with him John Markle, Jr., F. Freedley Hunsicker, Jr., and Drinker, Biddle & Reath, 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., Wilkinson, Jr., Mencer, Rogers, Blatt and DiSalle. Opinion by Judge Rogers. Judge DiSalle dissents.
General Electric Company has petitioned for review of decisions of the Unemployment Compensation Board of Review awarding unemployment compensation benefits to the claimants in two test cases involving 155 General Electric Company employees. The Board concluded that the claimants' unemployment was not due to a stoppage of work which existed because of a labor dispute, within the meaning of Section 402(d) of the Unemployment Compensation Law, Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(d).
Since, in accordance with the holding of California Department of Human Resources Development v. Java, 402 U.S. 121, 28 L.Ed. 2d 666 (1971), these claimants were paid unemployment compensation benefits immediately following the initial determination of their eligibility our decision will determine only whether General Electric's reserve account in the Unemployment Compensation Fund is charged with the monies paid to the claimants in these cases.
General Electric Company's Philadelphia facility houses a production process known as the Metal Enclosed Switchgear (M.E.S.) operation. This operation produces large electric switchgears and consists of the fabrication of steel to specification and the assembly of the switchgear, including wiring, testing, inspection, needed rewiring and shipping. The M.E.S. operation is an assembly or production line, the flow of which is as follows: The process begins in the fabrication shop where the steel is cut to the proper shape for switchgear doors and punched with holes for the instruments which will be later attached. After the doors are painted, they may go to one of several different shops, depending upon the customer's specifications. For example, an instrument door would remain in storage until the subassembly wiremen could
begin wiring and assembly work whereas a top plate would be sent to the top plate assembly where the top plate assemblers would perform the necessary assembly work. When the subassembly wiremen and the top plate assemblers have finished their work, the door is again stored until it can proceed to the final assembly unit where it is assembled into the finished product, tested, rewired if defects are found, inspected and shipped.
On March 15, 1972, approximately 80 wiremen and assemblers who comprised the top plate assembly and the final assembly units commenced a strike as the result of a labor dispute. The effect of this work stoppage, which continued until May 1, 1972, was the complete cessation of production in those two areas. When the strike began, the fabrication shop and subassembly workers, the so-called "upstream" workers who are the claimants in No. 1313 C.D. 1975, continued to work for about three weeks after the strike began but were then laid off by General Electric. The claimants in No. 1312 C.D. 1975 are the so-called "downstream" workers who perform the testing, inspecting and expediting functions in the M.E.S. operation. To a large extent, their duties are performed either during or after the final assembly unit has worked on the particular item. These claimants worked for several days after the commencement of the strike and were then laid off by the company. All of the claimants and the strikers were members of International Union of Electrical Workers Local 119.
The "upstream" and "downstream" workers applied individually for unemployment compensation benefits. The Bureau of Employment Security consolidated the cases into two representative groups: the Binder group which is comprised of the claimants who worked in upstream jobs, and the Saddic group made up of those claimants employed in downstream
jobs. The Bureau conducted a hearing after which it determined that the upstream claimants were entitled to receive benefits but that the downstream claimants were not. Both General Electric and the downstream claimants appealed from this determination and a second hearing was held before a referee on August 28, 1973. The referee affirmed the Bureau's determination as to the upstream claimants but reversed its determination as to the downstream claimants, thus holding that all of the claimants were eligible for benefits. General Electric appealed to the Unemployment Compensation Board of Review which affirmed the referee's decision, holding that the claimants' unemployment was not due to the strike and that therefore Section 402(d) would not apply to render them ineligible for compensation. General Electric asked us to review that decision.
Section 402(d) of the Unemployment Compensation Law, 43 P.S. § 802(d) provides:
An employe 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 lock-out) at the factory, establishment or other premises at which he is or was last employed: Provided, that this subsection shall not apply if it is shown that (1) he is not participating in, or directly interested in, the labor dispute which caused the stoppage of work, and (2) he is not a member of an organization which is participating in, or directly interested in, the labor dispute which caused the stoppage of work, and (3) ...