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ROBERT F. KERNER ET AL. v. COMMONWEALTH PENNSYLVANIA (08/04/82)

decided: August 4, 1982.

ROBERT F. KERNER ET AL., PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT. A.E. STALEY MANUFACTURING CO., INTERVENOR



Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Robert F. Kerner, et al. No. B-188172.

COUNSEL

Allen A. Pechter, Pechter, Stief & Waite, for petitioners.

Harry Reagan, with him William J. Flannery, Morgan, Lewis & Bockius, for intervenor.

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

Author: Crumlish

[ 68 Pa. Commw. Page 133]

Robert Kerner appeals an Unemployment Compensation Board of Review order which found him*fn1 to be ineligible for benefits under Section 402(d) of the Unemployment Compensation Law.*fn2 We affirm.

A.E. Staley Manufacturing Co. employed Kerner, a union member, under a collective bargaining agreement set to expire on February 6, 1979. The union and Staley began to negotiate a new contract on December 14, 1978. At the first meeting, the union requested

[ 68 Pa. Commw. Page 134]

    an extension of the existing contract should the parties fail to reach an agreement. Staley declined to discuss this possibility, considering it premature. The union made the same request on January 17th and received the same response. This was the last request made by the union for an extension of time on the existing contract.

On February 1st, at a general membership meeting, the proposed contract submitted by Staley was rejected. On February 4th, the union informed Staley by phone that the proposal had been rejected and that the union would strike. On February 5th, the union and Staley met for the last time; no agreement was reached and no proposal was put forth by the union to continue working under the terms of the expired contract. The union notified Staley that a work stoppage would begin on February 6th because Staley had failed to grant an extension of the contract. Following this notice, Staley sent all workers home paying them for the final day of their contract.*fn3

We are presented with the issue of whether this work stoppage was a strike or a lockout. Section 402 of the Law provides:

An employee shall be ineligible for compensation for any week --

(d) In 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: Provided, That this subsection shall not apply if it ...


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