Appeals from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Thomas S. Geyer, No. B-172668 and In Re: Claim of Rudolph J. Scheuerle, No. B-172669.
Michael Ira Levin, of Cleckner and Fearen, for petitioner.
Shelley W. Elovitz, with her Elsa Newman-Silverstine, Assistant Attorney General, Ronald N. Watzman, and Robert Balbis, for respondents.
Judges Wilkinson, Jr., Rogers and Craig, sitting as a panel of three. Opinion by Judge Craig.
[ 54 Pa. Commw. Page 195]
The Elizabeth Forward School District (district) petitions for review of the orders of the Unemployment Compensation Board of Review which affirmed the referee's awards of benefits, for the weeks ending
[ 54 Pa. Commw. Page 196]
September 2, 1978 through September 23, 1978, to Thomas S. Geyer and Rudolph J. Scheuerle, two token claimants. The referee concluded that claimants' unemployment during that period, although related to a labor dispute, was the result of a lockout by the district within the meaning of Section 402(d) of the Unemployment Compensation Law, Act of December 5, 1936, Second Ex. Sess., P.L.  2897, as amended, 43 P.S. § 802(d). The appeals have been consolidated by this court's order.*fn1
The established test to be applied in determining whether a work stoppage is a strike or a lockout is that which the Supreme Court articulated in Vrotney Unemployment Case, 400 Pa. 440, 444-45, 163 A.2d 91, 93-94 (1960):
Have the employees offered to continue working for a reasonable time under the pre-existing terms and conditions of employment so as to avert a work stoppage pending the final settlement of the contract negotiations; and has the employer agreed to permit work to continue for a reasonable time under the pre-existing terms and conditions of employment pending further negotiations? If the employer refuses to so extend the expiring contract and maintain the status quo, then the resulting work stoppage constitutes a 'lockout' and the disqualification for unemployment compensation benefits in the case of a 'stoppage of work because of a labor dispute' does not apply.
[ 54 Pa. Commw. Page 197]
The events revealed by the record, to be measured against that rule, are as follows:
In January, 1978, negotiations commenced between the district and the Elizabeth Forward Education Association (association) in anticipation of the June 30, 1978 expiration of the collective bargaining agreement. At the initial session, the district proposed "operating procedures" to be followed if a new agreement were not reached by the end of June. The district contends that the association "agreed" with those procedures but the association characterizes the outcome of that meeting as "confusion"; the association did send a letter, dated January 14, 1978, informing the district of its opposition to the proposed ...