decided: October 15, 1980.
THOMAS K. LOFTUS ET AL., PETITIONERS
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW AND CANADA DRY BOTTLING CO., RESPONDENTS
Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Thomas K. Loftus, Edward Jones, John Golaszewski, Joseph F. Artone, Joseph Langan, Jr., William D. Ash, Americus A. Viloani, Joseph F. Coleman, Frederick Gorton, Jr., Ernest J. Mayer, Brian J. Vanston and Chester Brezinski, No. B-174074.
John J. Dunn, Sr., with him Robert D. Mariani, Dunn & Byrne, for petitioners.
William Kennedy, Assistant Attorney General, for respondent Board.
Robert Ufberg, Rosenberg & Ufberg, for respondent employer.
Judges Mencer, Craig and Williams, Jr., sitting as a panel of three. Opinion by Judge Mencer.
[ 54 Pa. Commw. Page 272]
This appeal requires us to determine whether the Unemployment Compensation Board of Review (Board) correctly concluded that appellants, members of Teamsters' Local 229 and employed by Canada Dry Bottling Company, were ineligible for unemployment compensation benefits, under the provisions of Section 402(d) of the Unemployment Compensation Law,*fn1 because their unemployment was due to a work stoppage caused by a strike.
Section 402(d) provides, in pertinent part, that "[a]n employe shall be ineligible for compensation for any week . . . (d) [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. . . ."
Since we conclude that the work stoppage being considered in this appeal was the result of a strike by appellants, and not an employer lock-out, we hold that
[ 54 Pa. Commw. Page 273]
the Board did not err as a matter of law in affirming the referee's denial of benefits to appellants.
Our Supreme Court, in the case of Philco Corp. v. Unemployment Compensation Board of Review, 430 Pa. 101, 103-04, 242 A.2d 454, 455 (1968), stated:
Since 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 a lock-out requires us to determine which side, union or management, first refused to continue operations under the status quo after the contract had technically expired, but while negotiations were continuing. As this Court stated in Vrotney Unemployment Compensation Case, 400 Pa. 440, 444-45, 163 A.2d 91, 93-94 (1960), the question we must answer to decide on whose shoulders lay the responsibility for the work stoppage is the following: '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? . . .'
Here the critical facts, as found by the referee and Board,*fn2 were that the appellants were members of
[ 54 Pa. Commw. Page 274]
Teamsters' Local 229 (union), which is the bargaining representative for drivers, warehousemen and helpers employed by the Canada Dry Bottling Company (employer). The union and the employer had entered into a collective bargaining agreement which covered the period from May 24, 1976 to midnight, May 24, 1978. At a negotiation session held on May 22, 1978, the union advised the employer that its members would be amenable to working beyond the expiration date of the existing collective bargaining agreement if the employer would assent to making provisions in the new collective bargaining agreement retroactive to May 24, 1978, the date on which the existing agreement was to expire. The employer refused to so assent.
Union and employer bargaining representatives again met during the afternoon of May 24, 1978 but were unable to reach an accord. At this meeting, the union repeated its proposal to extend the existing collective bargaining agreement, provided that the provisions of the new agreement would be retroactive to May 24, 1978. The employer again rejected the union's offer to continue work conditioned on the retroactive coverage of a new agreement.
On May 25, 1978, the appellants began picketing the employer's premises. The employer was amenable to permitting the appellants to continue working under the terms and conditions of the collective bargaining agreement which expired on May 24, 1978, but none of the appellants entered the plant on May 25, 1978 to go to work.
In view of these findings of fact, which are supported by substantial evidence*fn3 in the record, we hold
[ 54 Pa. Commw. Page 275]
that the appellants' failure to accept the employer's offer to permit them to continue working under the terms and conditions of the expired agreement indicates that the responsibility for the resultant work stoppage was theirs. We have held that a demand of retroactive benefits is incompatible with, and does not constitute, a bona fide offer by employees to continue work under the pre-existing terms and conditions of employment as embodied in the expired agreement. Gladieux Food Services, Inc. v. Unemployment Compensation Board of Review, 27 Pa. Commonwealth Ct. 142, 365 A.2d 889 (1976), rev'd on other grounds, 479 Pa. 324, 388 A.2d 678 (1978).
Therefore, by refusing to accept the employer's offer of continued employment under unchanged terms and conditions of the pre-existing agreement, the appellants refused to maintain the status quo and the resultant work stoppage must be held to be a strike. Colonial School District v. Unemployment Compensation Board of Review, 53 Pa. Commonwealth Ct. 30, 416 A.2d 1152 (1980). Compare Chichester School District v. Unemployment Compensation Board of Review, 53 Pa. Commonwealth Ct. 74, 415 A.2d 997 (1980).
Accordingly, we must affirm the Board's order.*fn4
[ 54 Pa. Commw. Page 276]
And Now, this 15th day of October, 1980, the order of the Unemployment Compensation Board of Review, dated July 17, 1979 (Decision No. B-174074), is hereby affirmed.