Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Elizabeth D. Showman et al., No. B-196423.
Richard A. Chesnik, for petitioner.
John F. Kupchinsky, Associate Counsel, with him Charles G. Hasson, Assistant Counsel, and Richard L. Cole, Jr., Chief Counsel, for respondent.
Judges Rogers, Williams, Jr. and Doyle, sitting as a panel of three. Opinion by Judge Williams, Jr. Judge Rogers dissents.
[ 72 Pa. Commw. Page 249]
The G.C. Murphy Company (employer) appeals from an order of the Unemployment Compensation Board of Review (Board) affirming the granting of Benefits to 43 employees after the conclusion of a strike.
The employer operates a large discount store employing approximately 115 employees, 96 of which belong to a bargaining unit. On June 1, 1980 the labor agreement covering the unit employees expired, whereupon negotiations commenced between the employer and the representative of the unit, Teamsters' Local Union No. 491. On September 23, 1980, negotiations broke down and a strike was called.
After extensive negotiating, the striking employees ratified a contract on Sunday, February 15, 1981. As part of this contract it was agreed by the parties that
[ 72 Pa. Commw. Page 250]
a segment of the workforce would be called in as soon as possible, with the remainder of the employees being recalled on an as-needed basis. The current level of business operations and sales did not justify an immediate recall of the entire workforce. The recall agreement provided that employees would be called according to seniority and would be given five days to report to work after receipt of their recall notice.
The employer decided that 28 employees could be used immediately and mailed recall letters to 28 on Thursday, February 19, 1981. Exclusive of Sunday, these employees had until Wednesday, February 25th to return to work. On Monday, February 16, 1981, 43 employees had filed for unemployment benefits; a large number of which were recalled by the February 19 letter. The Office of Employment Security determined that all 43 claimants were entitled to benefits under Section 402(d) of the Unemployment Compensation Law (Law), 43 P.S. § 802(d).*fn1
A petition for Mass Appeal was filed by the employer and a hearing was held in front of a referee. The employer asserted that benefits should be denied from Monday, February 16, 1981 till Wednesday, February 25, 1981, the time the employer alleges was reasonable to resume normal operations after the conclusion of the strike. One claimant was chosen as a lead claimant with the decision being applicable to the other 42. The lead claimant was in that group of employees first recalled and who reported for work on Wednesday, February 25, 1981. The referee found that since the employer's store remained open for business ...