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JAMES W. WRIGHT ET AL. v. COMMONWEALTH PENNSYLVANIA (09/04/79)

decided: September 4, 1979.

JAMES W. WRIGHT ET AL., PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT; KOPPERS COMPANY, INC., INTERVENOR



Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of James W. Wright et al., No. B-149875 through B-149880.

COUNSEL

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

Templeton Smith, for intervenor.

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

Author: Bowman

[ 45 Pa. Commw. Page 376]

This petition for review arises out of claims for unemployment compensation filed by forty-eight (48) employees of Koppers Engineering and Construction Company (Koppers) as a result of their unemployment during the period from September 9, 1976 through January 3, 1977, the period during which other Koppers employees, members of the United Steel Workers of America Local 13300 (Steel Workers), maintained a work stoppage in a dispute over negotiation of a new collective bargaining contract.

The Bureau of Employment Security granted the claims for the period from September 9, 1976 through September 14, 1976, because it found that the claimants could not have entered the plant due to mass picketing and material obstruction at the construction gate, but denied benefits for the remainder of the strike because it found that the claimants remained away from available work by honoring the Steel Workers' picket line.

On appeal by the employer the Referee, after hearing, reversed the Bureau as to the September 9 through September 14 period, and declared claimants

[ 45 Pa. Commw. Page 377]

    ineligible for benefits through the duration of the work stoppage. The Unemployment Compensation Board of Review affirmed the Referee's decision to deny benefits, and claimants have appealed to this Court.

Claimants have been denied benefits pursuant to Section 402(d) of the Unemployment Compensation Law (Law),*fn1 43 P.S. § 802(d), which declares as ineligible for compensation any employee whose

     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) 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.

Claimants are construction workers, and at the time of the Steel Workers' strike were members of various craft unions affiliated with the Butler, Pennsylvania, Building Trades Council. As such, they satisfy criteria (2) and (3) set forth in Section 402(d). The Board of Review found, however, that they did not attempt to cross the Steel Workers' picket line and thereby participated in the labor dispute to an extent

[ 45 Pa. Commw. Page 378]

    sufficient to disqualify them from benefits. The sole question presented by this appeal is therefore directed to whether the work stoppage of these employees was caused by their voluntarily choosing to honor the Steel Workers' picket line or whether, as claimants allege, there were sufficient threats, violence ...


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