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SCHOOL DISTRICT CITY ALLENTOWN v. COMMONWEALTH PENNSYLVANIA (11/02/79)

decided: November 2, 1979.

SCHOOL DISTRICT OF THE CITY OF ALLENTOWN, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT. (12 CASES) (CLAIMS OF: ARLENE S. BRIENER, ALBERTA S. SACHS, ARLENE S. EISENMAN, MARGIE B. KERN, CONSTANCE M. LAUDENSLAGER, MARY ANN ROCCO, ELSIE S. PETERS, GLADYS K. MONGILUTZ, PAULINE M. ZEINER, KATHERINE F. BOANDL, DOLORES R. SMITH, AND ADELE E. KRAUSS)



Appeals from the Orders of the Unemployment Compensation Board of Review in cases of Arlene S. Briener, Alberta S. Sachs, Arlene S. Eisenman, Margie B. Kern, Constance M. Laudenslager, Mary Ann Rocco, Elsie S. Peters, Gladys K. Mongilutz, Pauline M. Zeiner, Katherine F. Boandl, Delores R. Smith and Adele E. Krauss, Nos. B-153357 to B-153368.

COUNSEL

Edward H. Feege, with him Hays and Feege, P.C., for appellant.

Daniel R. Schuckers, Assistant Attorney General, with him Richard Wagner, Assistant Attorney General, and Edward G. Biester, Jr., Attorney General, for appellee.

Jerome H. Gerber, with him James L. Cowden, and Handler, Gerber and Weinstock, for amicus curiae, Pennsylvania AFL-CIO.

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

Author: Craig

[ 47 Pa. Commw. Page 190]

The School District of the City of Allentown (employer) appeals from the decision of the Unemployment Compensation Board of Review (Board), affirming the referee's determination that claimants, teachers' aides, who were unemployed for 17 working days as a result of the Allentown Education Association's strike against employer, were eligible for compensation.*fn1

Governing the issue is 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), which provides:

An employee 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 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

[ 47 Pa. Commw. Page 191]

    stoppage occurs, any of whom are participating in, or directly interested in, the dispute.

No dispute exists with respect to the findings that claimants, who were not members of the Allentown Education Association or members of the collective bargaining unit represented by the Allentown Education Association, did not participate in the work stoppage, nor did they stand to benefit from any terms or conditions of a new collective bargaining agreement. Thus, claimants succeeded in showing that they met the first two conditions set forth in the proviso to Section 402(d) of the ...


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