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DOMENIC A. BORELLO v. COMMONWEALTH PENNSYLVANIA (02/08/79)

decided: February 8, 1979.

DOMENIC A. BORELLO, JR. ET AL., PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT. ROBERT F. BOLSINGER ET AL., PETITIONERS V. COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT. ENEO PANICCO 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 Domenic A. Borello, Jr., et al., No. B-149698; Claim of Robert F. Bolsinger, et al., No. B-149700; and Claim of Eneo Panicco, et al., No. B-149699.

COUNSEL

Stanford A. Segal, with him Gatz, Cohen, Segal & Koerner, for petitioners.

Michael Klein, Assistant Attorney General, with him Robert P. Kane, Attorney General, for respondent.

President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer, Rogers, DiSalle and Craig. Judges Blatt and MacPhail did not participate. Opinion by Judge Mencer. Dissenting Opinion by Judge Craig. Judges Crumlish, Jr. and DiSalle join in this dissent.

Author: Mencer

[ 40 Pa. Commw. Page 355]

These appeals arise out of claims for unemployment compensation filed by approximately 985 employees of Townsend and Bottum, Inc., as a result of their unemployment during the period of June 1, 1976 to June 22, 1976. The claims were denied by the Bureau of Employment Security (Bureau). On appeal by the claimants from the Bureau's determination, a referee affirmed the decision of the Bureau and, on further appeal by the claimants, the Unemployment Compensation Board of Review (Board) affirmed the decision of the referee and denied benefits. The claimants filed petitions for review and, after consolidation and hearing argument, we affirm.

The claimants seeking review at No. 2171 C.D. 1977 are members of various building and construction craft unions (Craft Workers), those seeking review at No. 2185 C.D. 1977 are members of Millwrights Local 2235 (Millwrights), and those seeking review at No. 2186 C.D. 1977 are members of Iron Workers Local 3 (Iron Workers). These claimants work on construction projects throughout western Pennsylvania, and immediately

[ 40 Pa. Commw. Page 356]

    before their unemployment that results in the claims here under consideration, they were working on the fossil-fuel construction project at Shippingport, Pennsylvania.

On May 31, 1976, various labor-management agreements expired throughout the construction sector in western Pennsylvania. The Master Builders Association did reach an agreement with the Craft Workers on or before June 1, 1976 but no agreement was entered into between the Millwrights and the Master Builders Association by that date, and no agreement had been reached between the Iron Workers and the Iron Workers Association.

Although the Master Builders Association and the Iron Workers Association were willing to maintain the status quo for work performed on and after June 1, 1976, the firm position of the Millwrights and Iron Workers was that any future agreement would have to contain a provision making any higher wage rate retroactive to June 1, 1976.

On June 1 and June 2 of 1976, the Craft Workers were allowed entry to the job sites and they worked their daily schedules. However, on those two days the Millwrights and the Iron Workers were barred from entering the job sites. On June 3, 1976 and continuing thereafter through June 21, 1976, the Millwrights and Iron Workers established picket lines at the various job sites which were honored by the Craft Workers, resulting in their refusal to cross the picket lines to reach the job sites. The picketing at all times was peaceful and orderly and there were no threats or violence at the picket lines.

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. ยง 802(d), provides:

[ 40 Pa. Commw. Page 357]

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 sub-section 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.

The claimants bore the burden of proving their eligibility. Kanouse v. Unemployment Compensation Board of Review, 9 Pa. Commonwealth Ct. 188, 305 A.2d 782 (1973). Since a labor dispute was in progress, the rule required the instant claimant to prove by the preponderance of evidence that their stoppage or cessation of work was a result of causes other than their or their union's participation in the dispute.

Our scope of review in unemployment cases is confined to questions of law and, absent fraud, to a determination as to whether the Board's findings are supported by the evidence. Questions of credibility and the weight to be given evidence are for the Board. Unemployment Compensation Board of Review v. Tickle, 19 Pa. Commonwealth Ct. 550, 339 A.2d 864 (1975).

[ 40 Pa. Commw. Page 358]

The claimants contend that the employers, in denying the Millwrights and Iron Workers admittance to job sites on June 1 and June 2 of 1976, caused the work stoppage and that the Craft Workers were locked out by the employers. Our examination of the record reveals to us that there is evidence to support such contentions. However, there is conflicting evidence that does support the findings made by the Board. We must be mindful that questions of credibility and the weight to be given evidence are for the Board and that our scope of review is limited.

The following facts, as found by the Board, are crucial to our disposition of the instant cases.

No. 2171 C.D. 1977 (Craft Workers):

10. On the morning of June 1, 1976, claimant, the members of his union, and the employes of all other Building and Craft Unions, except Millwrights Local Union 2235 and Ironworkers Local Union 3, reported for work for their employers at the various new construction sites throughout Western Pennsylvania.

11. The Ironworkers Local 3 and Millwrights Local 2235 members made no sincere effort to report for work on June 1, 1976 but even if they had done so, orders had emanated from Townsend and Bottum, Incorporated that had been issued to the security guards stationed at the various entrances to various job sites, that entry was to be barred to the members of Ironworkers Local 3 and ...


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