No. 8 W.D. Appeal Dkt. 1982, Appeal from a Consolidated Decision and Order of the Commonwealth Court of Pennsylvania at Nos. 2207, 2208, 2209, 2210 and 2211 C.D. 1980, Affirming Opinions of the Unemployment Compensation Board of Review at Decision Nos. B-187304 through B-187308, 61 Pa. Commonwealth Ct. 635,
O'Brien, C.j., and Roberts, Nix, Larsen, Flaherty, McDermott and Hutchinson, JJ. Larsen, J., files a dissenting opinion.
This is an appeal from the order*fn1 of the Commonwealth Court affirming the grant of benefits pursuant to Section 402(d) of the Pennsylvania Unemployment Compensation Law*fn2 by the Unemployment Compensation Board of Review (Board) to appellees, professional employees, of the Fairview School District.
In the instant appeal, a collective bargaining agreement, effective September 1, 1977 through August 26, 1979, was entered into between the Fairview Education Association (FEA) and the Fairview School District. Prior to the expiration of the agreement and while negotiations for a new agreement were in progress, the Fairview School Board at its regular monthly meeting on August 20, 1979, passed a resolution offering to extend the old contract for a period of up to sixty (60) days. The resolution specified that the extension would be under the same terms and conditions then in effect.
On August 23, 1979, unaware of the passage of the School Board's resolution, FEA sent a letter to the Board ". . . requesting an extension of the present contract for a reasonable period of time beyond the present expiration date of August 26, 1979, which would include an extension of all terms of the present contract including, but not limited to, the grievance procedure and fringe benefits."*fn3 By letter dated August 28, 1979, the School Board President notified FEA of the resolution offering to extend the contract for up to sixty (60) days.
Although no formal agreement was documented concerning the extension of the contract, the teachers appeared for
an in-service day on September 5, 1979 and began student instruction on September 6, 1979. On September 7, 1979, the teachers received a regularly scheduled bi-weekly pay check. The pay checks were computed on the basis of the salary matrix used the prior school year and contained in the collective bargaining agreement which had expired on August 26, 1979 but extended by agreement. The checks, however, did not include any step-up in pay based on an additional year of service beyond the 1978-1979 school year covered by the expired agreement.
On September 13, 1979, a grievance report was filed by FEA on behalf of its members. The report alleged that the extended agreement was violated because the School District failed to move its personnel to an advanced pay step-up based on an additional year of service. A work stoppage commenced on September 14, 1979 and continued until October 22, 1979 when all teachers employed by the District returned to work pursuant to an order of the Court of Common Pleas of Erie County.
On September 16, 1979, several teachers filed token claims for benefits, ostensibly to determine the rights of all teachers within the District. The Employment Security Office denied benefits on the basis that claimants were engaged in a labor dispute, thus rendering them ineligible under Section 402(d) of the Act. A referee affirmed the denial of benefits, but was overturned when the Unemployment Compensation Board of Review held that claimants were not rendered ineligible under that section. The Commonwealth Court affirmed the Board and this appeal followed.
Section 402(d) of the Act provides:
An employe 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 is shown that (1) he is not participating in, or directly interested in, the labor dispute
which caused the stoppage of work, and (2) he is not a member of an organization which is participating in, or directly interested in, the labor dispute which caused the stoppage of work, and (3) he does not belong to a grade or class of workers of which, immediately before the commencement of the stoppage, there were members employed at the premises at ...