decided: May 8, 1980.
CHEMICAL LEAMAN TANK LINES, INC., MATLACK, INC., MATERIALS TRANSPORT SERVICE, INC. AND SCHWERMAN TRUCKING COMPANY, PETITIONERS
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT. EUGENE C. ACHEY ET AL., INTERVENORS
Appeal from the Order of the Unemployment Compensation Board of Review, in case of In re: Claims of Eugene C. Achey, No. B-162286; Thomas E. Butler, No. B-162287; Ray O. Corman, No. B-162288; Franklin R. Strohl, Jr., No. B-162289; Robert Corman, No. B-162290; Frank P. Gasper, No. B-162291; Oscar E. Wagner, No. B-162292; Arthur Hosier, No. B-162293; Frederick J. Stettler, No. B-162297; Richard E. Dalla Palu, No. B-162298; Leroy B. Krause, No. B-162299; Robert F. Kern, No. B-162300; Carvin C. Miller, No. B-162301; Dale E. Baer, No. B-162302; Donald C. Miller, No. B-162303; Barry W. Keller, No. B-162304; James F. Marion, No. B-162305; Dennis F. Gehris, No. B-162306; Larry A. Strohl, No. B-162307; Albert C. Heffner, No. B-162308; George Asber, No. B-162309; Dennis R. Canoy, No. B-162310, and Stephen A. Skrapits, No. B-162311.
Alfred J. D'Angelo, Cunniff, Bray & McAleese, for petitioners.
Elsa Newman-Silverstine, with her David R. Confer, Assistant Attorneys General, Richard Wagner, Chief Counsel, and Edward G. Biester, Jr., Attorney General, for respondent.
Andrew L. Markowitz with him Deborah R. Willig, and Stephen C. Richman, Markowitz & Richman, for intervenors.
Judges Crumlish, Jr., Wilkinson, Jr. and Mencer, sitting as a panel of three. Opinion by Judge Mencer. President Judge Bowman did not participate in the decision in this case.
[ 51 Pa. Commw. Page 258]
Before us is a petition for review from the Unemployment Compensation Board of Review's (Board) grant of unemployment compensation benefits to Eugene
[ 51 Pa. Commw. Page 259]
C. Achey.*fn1 The dispositive question is whether Section 402(d) of the Unemployment Compensation Law (Act)*fn2 operates to render claimant ineligible for unemployment benefits. We answer the question in the negative.
Claimants are truck driver employees of the Employers who are common carriers by motor vehicle and maintain and operate trucking terminals in the Lehigh Valley of Pennsylvania. The Employers are engaged in the business of transporting cement manufactured by various cement-producing mills to customers of these cement producers.
The business of the Employers fluctuates on a daily basis, based upon customer demand for cement and whether a particular cement producer will request one of the Employers to transport the product. As common carriers, the Employers do not enter into any contract with the cement producers, the terms of which obligate the producers to give the Employers a certain amount of work. Rather, the Employers, who have obtained the requisite authorities from various state and federal regulatory bodies, hold themselves out as available to transport cement when called upon by the cement producers on a daily basis. Usually, the cement producers contact the Employers by early evening to give them orders for the next day. The Employers, pursuant to the agreement hereinafter referred to, then dispatch the available drivers in accordance with their seniority.
All claimants are represented for the purpose of collective bargaining by Teamsters Local Union No.
[ 51 Pa. Commw. Page 260773]
(Local 773), and all claimants are members of Local 773.
Local 773 and the Employers, as well as additional unions and employers, are and have been party to a multiemployer-multiunion collective bargaining agreement known as the Eastern Area Cement Haul Agreement (Agreement). The Agreement covers the claimants, as well as other drivers and mechanics employed by the Employers, and governs their wages, hours and working conditions. The Agreement material to this case was operative by its terms for the period March 1, 1974 through February 28, 1977. Prior to the expiration date of the Agreement and thereafter, the Employers and Local 773, as well as the other unions and employers in the multiemployer-multiunion unit, engaged in collective bargaining negotiations for the purpose of arriving at a successor agreement containing changes in terms and conditions of employment of the claimants.
After extensive negotiations, on March 5, 1977, the employers covered by the Agreement presented in negotiations their final economic offer for changes in the Agreement to Local 773 and the other local unions covered by the Agreement. The offer was rejected by Local 773 and the other unions in the multiunion unit as unacceptable and, in order to bring economic pressure to support its positions, Local 773 and the other unions advised the Employers that, as a result of the inability to agree upon a new contract, their truck driver and maintenance employees would engage in a strike at their Lehigh Valley terminals and withhold their services of employment. A strike began at each of the Employers' terminals on March 5, 1977. A picket line was set up at each of the Employers' terminals on March 5, 1977. The picketing and strike continued until March 21, 1977 when a new contract was ratified and agreed upon. The claimants, because of lack of
[ 51 Pa. Commw. Page 261]
demand by the cement producers, worked sporadically, if at all, during the months of January and February 1977.
The Board made the following finding of fact which we determine to be supported by substantial evidence in this record: "9. Claimant[s] did not participate in the work stoppage or the picketing in any way."
Section 402(d) of the Act states, in pertinent part: "An employe shall be ineligible for compensation for any week . . . [i]n 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. . . ."
Under the language of this section, the cessation of employment must occur because of a labor dispute. Thus, in instances where a work stoppage resulted from a cause other than a labor dispute, Section 402(d) is inapplicable and does not provide a basis for denying unemployment benefits. Gladieux Food Services, Inc. v. Unemployment Compensation Board of Review, 479 Pa. 324, 388 A.2d 678 (1978). Here the Board concluded that, on this record, the claimants' unemployment was due to lack of work*fn3 and that the subsequent labor dispute did not change the legal causation of their unemployment. Since the claimants did not participate in the work stoppage, the claimants could not be considered unemployed by reason of a labor dispute. Alloway Unemployment Compensation Case, 208 Pa. Superior Ct. 451, 222 A.2d 449 (1966).
[ 51 Pa. Commw. Page 262]
We are compelled to decide, in accord with the Board, that the claimants' employment ceased because of lack of work and not because of a work stoppage under the terms of Section 402(d) since it did not "exist because of a labor dispute." It was the absence of work that was the immediate cause of claimants' unemployment, and to construe the instant factual situation as a work stoppage existing because of a labor dispute would require us to go beyond the immediate cause, i.e., the absence of work. Following the direction given to us in Gladieux Food Services, Inc. v. Unemployment Compensation Board of Review, supra, this we decline to do.
Accordingly, we will affirm the order of the Board.
And Now, this 8th day of May, 1980, the order of the Unemployment Compensation Board of Review, dated August 2, 1978, granting benefits to Eugene C. Achey (Decision No. B-162286) is hereby affirmed. Also, similar orders entered relative to Decisions Nos. B-162287 to B-16293 and B-162297 to B-16311 are hereby affirmed.
Now, this 23rd day of June, 1980, the order of this Court entered May 8, 1980 in the above captioned matter is hereby amended to read as follows:
And Now, this 8th day of May, 1980, the order of the Unemployment Compensation Board of Review, dated August 2, 1978, granting benefits to Eugene C. Achey (Decision No. B-162286) is hereby affirmed. Also, similar orders entered relative to Decisions Nos. B-162287 to B-162293 and B-162297 to B-162311 are hereby affirmed.
President Judge Bowman did not participate in the decision in this case.