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decided: March 24, 1983.


Appeals from the Orders of the Unemployment Compensation Board of Review In re: Claim of Howard W. Anderson, No. B-197119; Claim of Kenneth Bryson, No. B-197120; Claim of Edward M. Cloud, No. B-197121; Claim of Charles Young, Jr., No. B-197122; Claim of John Webster, No. B-197123; Claim of Robert P. Davis, No. B-197124; Claim of Robert L. Waters, No. B-197125; Claim of Charles Hannum, No. B-197126; Claim of Dennis Charron, No. B-197127; Claim of Charles R. Puceta, No. B-197128; Claim of Willie Peterson, No. B-197129; Claim of Gene Bennett, No. B-197130; Claim of James G. Dydo, No. B-197131; Claim of John W. Snyder, No. B-197132; Claim of William J. Brown, No. B-197133; Claim of Ray J. Greer, No. B-197134; Claim of Mervin I. Baker, No. B-197135; Claim of David L. Fenimore, No. B-197136; Claim of David Eshleman, No. B-197137; Claim of Howard Burton, No. B-197138; Claim of Raymond A. Robinson, No. B-197139; Claim of Sidney E. Reason, Jr., No. B-197140; Claim of Richard D. Taney, No. B-197141; Claim of John E. Moran, No. B-197142; Claim of Antonio Giordano, No. B-197143; Claim of Thomas V. Underwood, No. B-197144; Claim of Caeser L. Evans, No. 197145; Claim of Von L. Jones, No. B-197146; Claim of Herbert C. Dilworth, No. B-197147, and Claim of William M. Wood, No. B-200263.


Edward Griffith, with him Steven L. Sugarman, Duane, Morris & Heckscher, for petitioner.

Jennifer Berke, with her Thomas E. Seus, Kelly, Harrington, McLaughlin & Foster, for intervenors.

No appearance for respondent.

Judges Rogers, Williams, Jr. and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 73 Pa. Commw. Page 113]

Penflex, Inc. (Employer) has brought this appeal from orders of the Unemployment Compensation Board of Review (Board) which awarded unemployment compensation benefits to Claimants.*fn1

The facts in this case are undisputed. Claimants were members of a collective bargaining unit represented by Plumbers Union Local 690 (Union). The collective bargaining agreement in existence between Employer and Union had an expiration date of June 30, 1980. Employer and Union failed to reach agreement on a new contract by July 1, 1980. The Union advised its membership not to engage in a work stoppage; the Union had not provided the thirty day notice to the Federal Mediation Conciliation Service required by Section 8(d) of the National Labor Relations Act

[ 73 Pa. Commw. Page 114]

(NLRA), 29 U.S.C. ยง 158(d) (1976).*fn2 Claimants disregarded their Union's advice and chose not to report for work on July 1. That same day Employer discharged the Claimants for participating in a work stoppage in violation of Section 8(d) of the NLRA.

The overriding principle involved in the decision of whether to grant or deny unemployment benefits is succinctly stated in Section 3 of the Unemployment Compensation Law (Law):*fn3 "[C]ompensation [is intended to be] for loss of wages by employes during periods when they become unemployed through no fault of their own." (Emphasis added). In furtherance of this principle, Section 402 of the Law*fn4 contains a number of ineligibility provisions; included among these provisions are subsection (d), ineligibility as a result of a strike, and subsection (e), ineligibility as a result of willful misconduct. In the present case, Employer contends that the Claimants are ineligible as a result of willful misconduct; i.e. an illegal work stoppage under Section 8(d) of the NLRA.*fn5 In support thereof, Employer cites to such cases as Progress Manufacturing Co. v. Unemployment Compensation Board of Review, 406 Pa. 163, 176 A.2d 632 (1962),

[ 73 Pa. Commw. Page 115589]

, 405 A.2d at 1064. We believe that where, as here, Employer and Union have undertaken to engage in collective bargaining under the aegis of the NLRA, then the Employer has a right to expect that the notice provisions of Section 8(d) will be complied with prior to an employee strike. We therefore conclude that the actions herein were, as a matter of law,*fn7 willful misconduct, disqualifying Claimants from benefits.

In making this decision, we are cognizant of the fact that conflicting decisions by the Board and federal authorities could be made regarding whether Section 8(d) was violated. However, the possibility of conflicting results does not bar the Board or this Court from determining whether, as a matter of Pennsylvania law, Claimants' actions constituted willful misconduct. See Moran v. Unemployment Compensation Board of Review, 42 Pa. Commonwealth Ct. 195, 400 A.2d 257 (1979).*fn8

Furthermore, our decision is influenced by the fact that if we were to accept the Claimants' and Board's arguments, then a striker, ineligible under the provisions of Section 402(d) of the Law, would become eligible for benefits upon the exercise by the employer of

[ 73 Pa. Commw. Page 117]

    its right to discharge the striker for violations by the striker of Section 8(d) of the NLRA. We therefore would be encouraging strikers to violate Section 8(d). Such a result would, we believe, so inhibit the exercise by an employer of its federal rights that a serious question of invalidity under the Supremacy Clause of the United States Constitution*fn9 would be raised. Cf. Unemployment Compensation Board of Review v. Sun Oil Co., 19 Pa. Commonwealth Ct. 447, 338 A.2d 710 (1975), aff'd, 476 Pa. 589, 383 A.2d 519 (1978).

We reverse.


The orders of the Unemployment Compensation Board of Review, Decision Numbers B-197119 through and including B-197147, all dated July 13, 1981, and Decision Number B-200263, dated October 15, 1981, are hereby reversed.



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