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