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DONALD RHODES v. COMMONWEALTH PENNSYLVANIA (05/04/78)

decided: May 4, 1978.

DONALD RHODES, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT; WESTINGHOUSE AIR BRAKE COMPANY, INTERVENOR. THADDEUS J. GEFERT, PETITIONER V. COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT; WESTINGHOUSE AIR BRAKE COMPANY, INTERVENOR. ALBERT GUILIANO, PETITIONER V. COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT; WESTINGHOUSE AIR BRAKE COMPANY, INTERVENOR. LLOYD E. MYERS, PETITIONER V. COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT; WESTINGHOUSE AIR BRAKE COMPANY, INTERVENOR



Appeals from the Orders of the Unemployment Compensation Board of Review in cases of In Re: Claim of Donald W. Rhodes, No. B-136987; Claim of Lloyd E. Myers, No. B-136990; Claim of Thaddeus J. Gefert, Jr., No. B-136988; and Claim of Albert Guiliano, No. B-136989.

COUNSEL

James H. Logan, with him Berlin, Boas, Isaacson, Logan, Rosenfield & Sharon, and, of counsel, Frank J. Donner, Robert Z. Lewis and James G. Mauro, Jr., for petitioners.

Joseph E. Madva, with him Thorp, Reed & Armstrong, for intervenor.

President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer, Rogers, Blatt and DiSalle. Opinion by Judge Mencer.

Author: Mencer

[ 35 Pa. Commw. Page 199]

These appeals arise out of claims for unemployment benefits filed by approximately 2400 employees

[ 35 Pa. Commw. Page 200]

    of Westinghouse Air Brake Company (Company), as a result of their unemployment for the 2 weeks ending November 8 and November 15, 1975. The claims were denied by the Bureau of Employment Security (Bureau). Pursuant to an agreement between the Bureau, the Company, and the United Electrical, Radio and Machine Workers of America, Local 610 (UE), the claims of Donald Rhodes, Albert Guiliano, and Lloyd E. Myers are to be treated as "fairly representative" of the claims of all other Company employees who were members of Local 610. The claim of Thaddeus J. Gefert was regarded by the referee as substantially the same as those of the three representative claimants.

On appeal by the claimants from the Bureau's determination, a referee modified the decision of the Bureau and ruled that claimants were eligible for benefits for November 3 and November 4, 1975. On further appeal by the claimants, the Unemployment Compensation Board of Review (Board) affirmed the decision of the referee and disallowed the appeals. The claimants filed petitions for review and, after consolidation and hearing, we affirm.

A reading of the record discloses a series of events and facts which could fairly be stated as follows:

Westinghouse Air Brake Company operates its Westinghouse Air Brake Division at Wilmerding, Pennsylvania. Its employes at the Wilmerding plant in October 1975 included 2400 production and maintenance employees represented by UE; 350 office, clerical and technical employees represented by the Westinghouse Air Brake Office and Technical Union (WABOTU); 16 plant protection employees represented by the Amalgamated Plant Guard Workers of America; and 450 management, professional and other nonunion employees. The 1972 collective bargaining agreements with both WABOTU and UE were by

[ 35 Pa. Commw. Page 201]

    their terms to terminate at midnight on Friday, October 31, 1975.

Negotiations for new contracts with both unions were carried on in October 1975, with the result that a settlement was reached between the Company and UE in early afternoon on Friday, October 31, approved by UE's executive board and its stewards later that afternoon and evening, and ratified by the membership on Sunday, November 2, 1975. The memorandum of settlement was executed by the Company and UE on Monday, November 3, 1975. This document extended, as modified, the 1972 agreement between the Company and UE for a term of 3 years, including its no-strike clause. Accordingly, there was no labor dispute as between the Company and UE after October 31, 1975.

Negotiations between the Company and WABOTU, however, were not concluded successfully, breaking off at 7:05 p.m. on Friday, October 31, with the WABOTU negotiating committee indicating that a strike and picketing would commence that evening. Picketing by WABOTU members actually began at 10:35 p.m. that night just prior to the start of the 11:15 p.m. third shift, when 200 UE members were scheduled to report for work. There were only three to five pickets at the Tunnel Gate to the plant, which is 20 to 24 feet wide and is the main pedestrian entrance to the plant, crossing under the Penn Central railroad tracks into the plant from the south side of Wilmerding. There are two other principal gates at the eastern and western extremities of the plant, known as the East and West Gates, which are used primarily by vehicular traffic, with parking facilities available to employees on the plant premises. UE members may use all three entrances to enter and leave the plant but use mostly the Tunnel Gate for pedestrian entry and the West Gate if they drive to work and park on plant

[ 35 Pa. Commw. Page 202]

    premises. The East and West Gates were also picketed beginning at 10:30 p.m. on the Friday in question.

Of the 200 UE members scheduled to report for the third shift that Friday night, October 31, only 45 crossed the WABOTU picket line through the Tunnel Gate and entered the plant, with the balance of the 200 declining to do so, apparently out of reluctance to cross over the picket line. The 45 who entered, moreover, did little or no work, and, despite entreaties by UE officials who entered the plant to persuade them to work and complete their shifts, they left the plant at midnight.

The WABOTU strike continued thereafter for a period of 2 weeks and ended with the ratification of a new agreement on Saturday, November 15, 1975, the plant resuming full production on Monday, November 17, 1975. The claim weeks involved in this case are, therefore, the 2 consecutive weeks beginning Monday, November 3, 1975, and the claimants are all members of UE. During the claim weeks involved, the plant and its gates were kept open for work, work was available at all times for the claimants and other personnel, the four furnaces in the foundry were operating until Thursday, November 6, with two of them operating and the other two placed on a standby basis thereafter, the plant was in operable condition, and no one was laid off.

During the first weekend of the strike, Saturday and Sunday, November 1 and 2, picketing by WABOTU at the three plant entrances was limited and peaceful; and the three or four heat men per shift, members of UE, who were the only employees scheduled to work that weekend, reported to work and worked without incident. Their function was to tend the foundry furnaces.

On Monday, November 3, 1975, WABOTU pickets engaged in massed picketing at all three plant entrances,

[ 35 Pa. Commw. Page 203]

    with 40 to 50 pickets stationed in front of each gate. In addition, each of the three gates had been barricaded. The Tunnel Gate was barricaded by benches stretched across its entrance, as well as by barrels. The East Gate was barricaded by railroad ties placed across the driveway entrance and was also blocked with an automobile parked in the driveway. The West Gate was barricaded with 4- by 4-foot timbers as well as barrels. The pickets bore signs stating that WABOTU was on strike and requesting UE to honor its picket lines.

As a result of the massed picketing, none of the Company's employees entered the plant that Monday, with the exception of the 16 plant guards, 7 maintenance heat men, and 1 apprentice, a member of UE, all of whom entered the plant without any difficulty. There were, however, some 60 management personnel also in the plant who had remained overnight from Sunday. The furnaces had been charged that Sunday night with the expectation that the UE production and maintenance employes would report for work on Monday morning. There were 1698 UE members who would normally report for the 7:15 a.m. day shift on Monday, including the claimants, and although about 1000 of them were in the area of the Tunnel entrance that day, none of them entered the plant. Although there was mass picketing on Monday, ...


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