Appeals from the Orders of the Unemployment Compensation Board of Review in cases of In Re: Claim of Theodore C. Goldsmith, No. B-139779; Claim of Charles Miller, Jr., No. B-139780; Claim of Raymond E. Justka, No. B-139781; Claim of Raymond Grabowski, No. B-139782; Claim of Thomas I. Bleil, No. B-139783; Claim of Darl R. Young, No. B-139784; Claim of Vincent Boni, No. B-139785; Claim of Eugene B. Stone, No. B-139787 and Claim of Andrew H. Figoli, No. 139788.
Irving Murphy, with him David E. Holland, and MacDonald, Illig, Jones & Britton, for appellant.
Charles G. Hasson, Assistant Attorney General, with him Michael Klein, Assistant Attorney General, and Robert P. Kane, Attorney General, for appellee.
President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer, Rogers and Blatt. Judge DiSalle did not participate. Opinion by Judge Rogers. Judge Mencer dissents.
[ 36 Pa. Commw. Page 206]
Lakeview Forge Company (Lakeview) has filed a petition for review of an order of the Unemployment Compensation Board of Review affirming a referee's decision that the nine respondents, Lakeview employes, were eligible to receive compensation on account of a period of unemployment coincident with a labor dispute. Lakeview maintains that the respondents who are members of Erie Lodge No. 270 of the International Die Sinkers Conference (IDSC) should have been denied benefits based on Subsection 402(d) of the Unemployment Compensation Law (Law),*fn1 43 P.S. § 802(d).
Subsection 402(d) provides that:
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,
[ 36 Pa. Commw. Page 207]
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) he does not belong to a grade or class of workers of which, immediately before the commencement of the stoppage, there were members employed at the premises at which the stoppage occurs, any of whom are participating in, or directly interested in, the dispute.
After a hearing, the referee made the following pertinent findings of fact in each of the nine cases before him:
2. The [representative] claimant is a member of Erie Lodge No. 270 of the International Die Sinkers Conference, the collective bargaining representative of the claimant and ten fellow die sinkers employed by the employer.
3. The collective bargaining agreement with respect to economic matters between Erie Lodge 270 of the die sinkers and the employer expired on July 31, 1975 without agreement upon a new contract and the claimant and his fellow die sinkers continued work thereafter under the terms of the expired contract pending settlement upon a new agreement.
4. Local 4666 of the United Steel Workers is the collective bargaining representative of approximately 65 production and maintenance employees of the employer at the plant where the claimant was employed and
[ 36 Pa. Commw. Page 208]
the collective bargaining agreement between that union local and the employer expired on August 31, 1975.
5. Because representatives of the employer and of Local 4666 were unable to agree upon the terms of a new contract prior to August 31, 1975, a work stoppage due to a labor dispute, other than a lockout, commenced at the employer's plant by members of Local 4666 on September 2, 1975.
6. The dispute between Local 4666 and the employer was not settled until on or about November 13, 1975 and following September 2, 1975 until settlement picket lines were maintained at the employer's plant site by members of Local 4666.
7. The picket line was maintained by numbers of pickets in excess of 50 until reduced to 10 by an Order of Court sought by the employer and issued on or about September 12, 1975.
8. Although the number of pickets was reduced to 10 by the Court Order of September 12, 1975 members of Local 4666 appeared on the picket line in greater numbers at intervals during the work stoppage.
9. On September 2, 1975 the claimant and his fellow die sinkers appeared at the entranceway to the employer's plant to report for work but were met by picketing members of Local 4666 who possessed clubs, sticks, and ice picks, who physically pushed back some of the die sinkers, and who threatened to 'crack ...