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DOMENIC A. BORELLO v. COMMONWEALTH PENNSYLVANIA (07/16/80)

decided: July 16, 1980.

DOMENIC A. BORELLO, JR., ET AL., APPELLANTS,
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW. ROBERT F. BOLSINGER ET AL., APPELLANTS, V. COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW. ENEO PANICCO ET AL., APPELLANTS, V. COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW



No. 149 March Term, 1979, No. 150 March Term, 1979, No. 151 March Term, 1979, Appeals from the Orders of the Commonwealth Court of Pennsylvania, at 2171 C.D. 1977, 2185 C.D. 1977 and 2186 C.D. 1977, Affirming the Orders of the Unemployment Compensation Board of Review.

COUNSEL

Stanford A. Segal, Gatz, Cohen, Segal & Koerner, P.A., Pittsburgh, for appellants.

Michael D. Klein, Asst. Atty. Gen., Unemployment Compensation Board of Review, Harrisburg, for appellee.

Eagen, C. J., and O'Brien, Roberts, Nix, Larsen, Flaherty and Kauffman, JJ. Larsen, J., joins in the majority opinion and files a separate concurring opinion. Flaherty, J., joins the opinion of the Court and also expresses his agreement with the sentiments set forth in the concurring opinion of Larsen, J.

Author: Nix

[ 490 Pa. Page 609]

OPINION

This is an appeal from the decision of the Commonwealth Court which affirmed the orders of the Unemployment Compensation Board of Review (Board), appellee, denying benefits to appellants under Section 402(d) of the Pennsylvania Unemployment Compensation Law, Act of December 5, 1936, Second Exec. Sess., P.L. (1937) 2897, art. IV, § 402, as amended, 43 P.S. § 802(d).

Appellants are members of three separate groups, each of whom were employed by Townsend and Bottum, Inc., for the construction of the Bruce Mansfield Fossil-Fuel project at Shippingport, Pennsylvania during 1976. The three groups consisted of: (1) members of various building and construction craft unions (Craft Unions); (2) members of the Iron Workers Local 3 (Ironworkers); and (3) members of Millwrights Local 2235 (Millwrights).

A review of the record reveals the following sequence of events. On May 31, 1976, various labor-management agreements covering among others, the appellants, expired. On or before June 1, 1976, the Craft Unions did reach an accord, but neither the Ironworkers nor the Millwrights were able

[ 490 Pa. Page 610]

    to reach mutually satisfactory agreements with Townsend and Bottum. Prior to the expiration of the respective contracts, the Ironworkers and Millwrights offered to enter into an interim agreement but required as part of that agreement that any wage increase subsequently won for the new contract be retroactive to June 1, 1976. Management refused and stated as a matter of policy "that if no agreement tentative or otherwise, was reached by June 1, 1976, . . . it would . . . not allow the Ironworkers and Millwrights to enter the various construction sites. . . ." (Board's Finding of Fact 15). No further formal offer to continue work was conveyed by either party before the deadline. No evidence of a formal strike vote nor any instruction from union leaders to its membership not to report for work on June 1, can be found in the record.

The construction site security guards were advised by management that as of June 1, 1976, Ironworkers and Millwrights were to be denied entry while all other building and craft union members could be admitted as usual. On the morning of June 1, 1976, certain job stewards and union representatives reported to the construction site and were denied entry by the security guards. The same occurred on June 2, 1976. On June 3, 1976, the two foreclosed unions set up peaceful picket lines at various job sites throughout Western Pennsylvania including the instant project. Their "picket signs" asserted the failure of management to bargain in good faith. The Craft Union members reported for work that morning, but did not enter the project for work nor did they do so until after the labor dispute was resolved on June 21, 1976.

Appellants filed for unemployment compensation for the period from June 1, to June 21, 1976. After their claims were denied by the Bureau of Employment and Security, the referee agreed with that determination, and the Unemployment Compensation Board of Review affirmed on appeal. The matters were consolidated before the Commonwealth Court and after argument, it found the Board's determination supported by the evidence and thus denied appellants' request for relief. 40 Pa. Commw. 353, 397 A.2d 471 (1979).

[ 490 Pa. Page 611]

We turn first to the claim by appellants, Millwrights and Ironworkers that the lower court erred in affirming the denail of compensation under Section 402(d). Our scope of review is limited to a determination as to whether any errors of law were committed and, "absent fraud," that the Board's findings are supported by the evidence. Unemployment Compensation Board of Review v. Tickle, 19 Pa. Commw. 550, 339 A.2d 864 (1975); see, e.g. Erie Forge and Steel Corporation v. Unemployment Compensation Board of Review, 400 Pa. 440, 163 A.2d 91 (1960).

The Millwrights and Ironworkers assert their entitlement to unemployment benefits under Section 402(d) on the grounds that they were ...


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