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WILKES-BARRE COUNCIL NEWSPAPER UNIONS v. COMMONWEALTH PENNSYLVANIA (03/19/81)

decided: March 19, 1981.

WILKES-BARRE COUNCIL OF NEWSPAPER UNIONS, INC., PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, OFFICE OF EMPLOYMENT SECURITY, DEPARTMENT OF LABOR AND INDUSTRY, RESPONDENT



Appeal from the Order of the Office of Employment Security, Department of Labor and Industry in the case of In the Matter of Wilkes-Barre Council of Newspaper Unions, Inc., Account No. 40-29692.

COUNSEL

Warren J. Borish, Meranze, Katz, Spear & Wilderman, for petitioner.

Sean F. Creegan, Assistant Attorney General, for respondent.

President Judge Crumlish and Judges Wilkinson, Jr., Mencer, Blatt, MacPhail, Williams, Jr. and Palladino. Judges Rogers and Craig did not participate. Opinion by Judge MacPhail.

Author: Macphail

[ 58 Pa. Commw. Page 2]

Wilkes-Barre Council of Newspaper Unions, Inc. (Council) appeals from an order of the Office of Employment Security, Department of Labor and Industry (Office) which denied a petition for reassessment under Section 304(a) of the Unemployment Compensation Law (Law).*fn1

[ 58 Pa. Commw. Page 3]

The facts of this case are essentially uncontested. The Council is a Pennsylvania, non-profit corporation comprised of four Wilkes-Barre labor unions,*fn2 which was formed just prior to the anticipated strike of these unions against the Wilkes-Barre Publishing Company (Employer). The express purpose of the Council was to publish an interim newspaper, the "Citizens Voice" ("Voice") as a strike weapon until an acceptable contract could be negotiated with the Employer. The strike began on October 6, 1978. The first edition of the "Voice" was published on October 9, 1978 and continued on a daily basis. At the time of the hearing before the Office, the strike had not been settled and the "Voice" was still being published.

During the strike the unions assigned their members to various strike related activities. Some of the members operated a strike kitchen, others picketed the Employer, while still others performed janitorial services at the unions' headquarters. The majority of the members were assigned to publish the "Voice." A week after the strike began, members of three of the four unions began to receive strike benefits from their parent International Unions. On November 17, 1978, members of all four unions began to receive supplemental

[ 58 Pa. Commw. Page 4]

    strike benefits from the profits of the "Voice." The amount paid from the profits to the union members varied so as to ensure that each and every union member received the same total amount of strike benefits per week.

To supplement the services of the union members on the "Voice" the Council hired some non-union employees. The Council covered these employees with Workmen's Compensation Insurance, withheld income taxes from their wages and contributed to the Unemployment Compensation Fund (Fund) according to the amount paid to these workers. The Council, however, did not cover the union members with Workmen's Compensation Insurance, withhold any personal income taxes from the supplemental strike benefits nor make any contribution to the Fund based on the supplemental strike benefits.

On August 27, 1979 the Council was notified that the Office*fn3 had made a determination and assessment against the Council for money owed to the Fund. A hearing was held on October 17, 1979. The hearing examiner held that the Council was the employer of the union members and that the money from the "Voice" paid to the union members who worked on the newspaper were wages for purpose of contribution to the Fund, while the money from the "Voice" paid to union members who did not work for the "Voice" were not. The Council appealed to this Court.

Our scope of review of a decision by a Commonwealth agency is to determine whether there has been an error of law or whether any finding of fact necessary to support its adjudication is not supported by substantial ...


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