Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claims of George E. Kerling et al., No. B-172039.
Michael I. Levin, Cleckner and Fearen, with him Francis P. O'Hara, Fox, Differ, Callahan, Ulrich & O'Hara, for petitioner.
Catherine C. O'Toole, with her Gary Marini, Assistant Attorney General, for respondents.
Judges Mencer, Rogers and Craig, sitting as a panel of three. Opinion by Judge Craig.
The only question before us is whether the Unemployment Compensation Board of Review (board) correctly concluded that claimants, teachers of the Colonial School District (employer), were eligible for unemployment compensation benefits under Section 402(d) of the Unemployment Compensation Law, 43 P.S. § 802(d)*fn1 because their unemployment was due to a work stoppage caused by a lock-out.
Section 402(d) provides in pertinent part that:
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. . . .
Because we conclude that the work stoppage was the result of a strike by claimants, and not an employer
lock-out, we hold that the board erred as a matter of law in affirming the referee's award of benefits to claimants.
The Supreme Court of Pennsylvania has stated, in Philco Corp. v. Unemployment Compensation Board of Review, 430 Pa. 103, 242 A.2d 454 (1968), that because the "purpose of our unemployment compensation system is to compensate an individual when work has been denied him through no fault of his own, logically the test of whether a work stoppage resulted from a strike or lock-out requires us to determine which side, union or management, first refused to continue ...