No. 119 March Term, 1977, Appeal from the Order of the Commonwealth Court, Dated November 17, 1976, at No. 1610 C.D. 1975.
Robert P. Kane, Atty. Gen., Daniel R. Schuckers, Sydney Reuben, Asst. Attys. Gen., Harrisburg, for appellant.
Thomas D. MacMullan, Pittsburgh, Richard Kirschner, Markowitz & Kirschner, Philadelphia, Robert H. Shoop, Jr., Thorp, Reed & Armstrong, Pittsburgh, for appellee.
Jerome H. Gerber and James L. Cowden, Handler, Gerber and Weinstock, Harrisburg, amicus curiae.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Packel, JJ. Packel, former J., did not participate in the decision of this case. Pomeroy, J., filed a dissenting opinion.
This is an appeal from the Commonwealth Court's reversal of the Unemployment Compensation Board of Review's (Board) grant of unemployment compensation benefits to David A. Laskey (claimant), an employee of appellee, Gladieux Food Services, Inc. (Gladieux). Gladieux Food Services, Inc. v. Unemployment Comp. Bd. of Rev., 27 Pa. Commw. 142, 365 A.2d 889 (1976).*fn1 The dispositive question in this appeal is whether section 402(d) of the Unemployment Compensation Law (Act) operates to render claimant ineligible for unemployment benefits.*fn2 Act of December 5,
, P.L. 2897, art. IV, § 402(d), as amended, 43 P.S. § 802(d) (1964). The Commonwealth Court answered this question in the affirmative. For the reasons set forth below, we disagree and, therefore reverse the order of the Commonwealth Court and reinstate the Board's grant of unemployment compensation benefits to claimant.
The facts in this case are as follows: Claimant is a member of Teamsters Local 249 (Union), which represents the employees at Gladieux's in-flight kitchen facility at the Pittsburgh airport. Gladieux and the Union were parties to a collective bargaining agreement which expired at midnight on April 30, 1974. Prior to April 30th, the Union and Gladieux held numerous bargaining sessions but were unable to agree on a new contract. Just before the expiration date of the collective bargaining agreement, the Union offered to continue to work under the terms of the expiring agreement on the condition that any new agreement be made retroactive to May 1, 1974. Gladieux declined this offer and informed the Union that it was willing to continue to provide work under the same terms and conditions of the then current agreement, but would not agree to retroactivity. The Board also found that during the negotiations Gladieux informed the Union that if there was no contract by April 30, 1974, there would be no work.
On the evening of April 30, 1974, Gladieux offered a new contract to the Union. At a meeting later that evening, the members of the Union rejected this offer. At the same meeting, the members voted to continue to work, and on the night of April 30, 1974, the employees reported for work and worked their usual shift. ...