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ROBERT G. HIGH ET AL. v. COMMONWEALTH PENNSYLVANIA (07/16/82)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: July 16, 1982.

ROBERT G. HIGH ET AL., PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT

Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Robert G. High, No. B-188545.

COUNSEL

A. Martin Herring, for petitioners.

Francine Ostrovsky, Associate Counsel, with her William J. Kennedy, Associate Counsel, and Richard L. Cole, Jr., Chief Counsel, for respondent.

President Judge Crumlish and Judges Rogers and Blatt, sitting as a panel of three. Opinion by Judge Blatt. Judge Mencer did not participate in the decision in this case.

Author: Blatt

[ 67 Pa. Commw. Page 473]

Robert G. High (claimant), representative of other claimants similarly situated, appeals a decision of the Unemployment Compensation Board of Review (Board) denying his claim on the basis that he had engaged in a work stoppage other than a lockout under Section 402(d) of the Unemployment Compensation Law.*fn1

The following facts,*fn2 which were determined by the Board, are not challenged by the claimant. The claimant was a professional employee of the Reading School District (District) and a member of the Reading Education Association (Association), which functioned as his collective bargaining representative. A collective

[ 67 Pa. Commw. Page 474]

    bargaining agreement had been in effect between the Association and the District and had an expiration date of June 30, 1978. Prior to its expiration, negotiations took place between the Association and the District in order to enter into a new agreement; such efforts, however, were unsuccessful. The parties then engaged in an impasse proceeding in which state mediation and fact-finding were utilized and during such process strikes by public employees, which would otherwise be authorized, were prohibited. During the course of the aforementioned negotiations and prior to September 5, 1978, the District informed the Association that the work day (7-7 hours 25 minutes)*fn3 which had existed under the expired agreement was no longer acceptable to the District and that, in the fall term of 1978, employees would be required to work a full eight hour day. The Association did not accept this proposal by the District but made a firm offer to continue to work under the same terms and conditions of the expired agreement. When the fall school term commenced on September 5, 1978, the District implemented its proposed change in the work day and the claimant, believing that a strike was prohibited by law until after October 25, 1978, reported to work. Then, sometime*fn4 after September 5, 1978, and prior to October

[ 67 Pa. Commw. Page 47525]

, 1978, the Association and the claimant were informed by the District that starting October 25, 1978, students would be dismissed earlier so that the work day would conform to the work day which had existed under the expired agreement. However, on October 25, 1978, the work day was not reduced, and, because work was not available to the claimant under the same terms and conditions of the expired agreement, and in spite of the Association's firm offers to continue working under the expired agreement, the claimant, along with the membership of the Association, engaged in a work stoppage effective October 26, 1978. Two days after the work stoppage had begun, the District offered (in writing) to have work resumed under the terms and conditions of the expired agreement. The Association rejected the District's offer and as a result, the claimant did not return to work throughout the labor dispute which eventually ended on November 28, 1978.*fn5

The Bureau (now Office) of Employment Security determined that the claimant's unemployment was due to a strike*fn6 and denied his application for benefits. Upon appeal the referee reversed concluding that because, when the fact-finding procedure was finished (on October 25, 1978), the terms and conditions of the expired agreement were no longer available due to the

[ 67 Pa. Commw. Page 476]

District's unilateral change in the claimant's work day, that the work stoppage was therefore a lockout.*fn7 The Board agreed with the referee that the District's change in the work day caused the work stoppage to be a lockout for October 26 and 27 of 1978 but concluded that, when the Association rejected the employer's offer on October 28, 1978 to have work resumed under the terms of the expired agreement, the labor dispute was converted to a strike. The Board further reasoned that, despite the fact that the labor dispute was a lockout for October 26 and 27, the claimant must be totally denied benefits during the compensable week ending October 28, 1978 because Section 402(d) of the Law provides that an "employe shall be ineligible for compensation for any week. . . in which his unemployment is due to a stoppage of work . . . (other than a lockout)." (Emphasis added.)

Both sides agree in their statements of questions presented before this Court that the central issue before us is whether or not the October 26 and 27, 1978 lockout could be converted to a strike by the Association's October 28, 1978 rejection of the District's offer to permit the teachers to work under the status quo as it existed prior to the expiration of the last collective bargaining agreement.

The claimant argues that the law does not recognize an adjustable status quo and that, once an employer disrupts the status quo, he cannot restore it. Although he does not directly support this proposition with any case law, he seeks to justify the rejection of the District's offer of October 28, 1978 on the basis that he had no assurance that the District would not change its mind and change conditions once the teachers had returned. The Board, on the other hand, argues

[ 67 Pa. Commw. Page 477]

    that the status quo is a fluid rather than a firm concept.

Semantics aside, we must consider the purpose of Law in general, and of Section 402(d) in particular. In Philco, 430 Pa. at 110, 242 A.2d at 459, our Supreme Court noted that "[o]ur unemployment compensation benefits are paid out of a public fund created to aid those . . . who have lost their jobs through no fault of their own." See Grossman v. Unemployment Compensation Board of Review, 52 Pa. Commonwealth Ct. 499, 415 A.2d 1018 (1980). Moreover, in construing Section 402(d) of the Law, "[i]t is settled law that the responsibility for a work stoppage is assessed against the party whose actions constituted the final cause thereof, and it is the duty of the compensation authorities to ascertain the final cause and responsibility." Bokoski Unemployment Compensation Case, 206 Pa. Superior Ct. 96, 100, 211 A.2d 124, 126 (1965) (emphasis added); see also Gladieux Food Services, Inc. v. Unemployment Compensation Board of Review, 479 Pa. 324, 388 A.2d 678 (1978).

Here, we agree with the Board that the final cause of the work stoppage, Bokoski, was the claimant's and the Association's October 28, 1978 rejection of the District's written offer and that the lockout was consequently converted to a strike on this date.*fn8 To hold

[ 67 Pa. Commw. Page 478]

    that the status quo once altered could never be restored,*fn9 or that only one party could conceivably, during the period of the labor dispute, be the cause of a work stoppage would serve to circumvent the Law's underlying purpose of encouraging both the employer and the employee to "be sincere in their desire to maintain the continued operation of the . . . enterprise," and to discourage the subsidization of those employees whose unemployment is largely attributable*fn10 to their own unwillingness to work under the status quo during the period of contract negotiations. Vrotney, 400 Pa. at 444, 163 A.2d at 93 (emphasis added).

Finding no error of law in the Board's conclusion here as to the central issue concerned, and further noting that the legislature has mandated that ineligibility under Section 402(d) of the Law shall be determined on a weekly basis, we must affirm the Board's order denying this claimant's application for benefits.

[ 67 Pa. Commw. Page 479]

Order

And Now, this 16th day of July, 1982, the order of the Unemployment Compensation Board of Review in the above-captioned matter is hereby affirmed.

Judge Mencer did not participate in the decision in this case.

Disposition

Affirmed.


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