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 ...