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decided: April 4, 1984.


Appeals from the Orders of the Unemployment Compensation Board of Review in cases of In re: Claim of Steven C. Seyer et al., No. B-194942 and Claim of Lana R. Nalichowski et al., No. B-194943.


Edward H. Feege, Hayes and Feege, P.C., for petitioner.

A. Martin Herring, for respondents, Steven C. Seger et al. and Lana R. Nalichowski et al.

President Judge Crumlish, Jr. and Judges Williams, Jr. and Blatt, sitting as a panel of three. Opinion by Judge Williams, Jr.

Author: Williams

[ 81 Pa. Commw. Page 349]

Lehigh County Community College (college) appeals from an Unemployment Compensation Board of Review order awarding benefits to two token claimants and other members of the Lehigh County Community College Faculty Association (union). The board concluded that claimants' unemployment resulted

[ 81 Pa. Commw. Page 350]

    from a lockout by the college under Section 402(d) of the Unemployment Compensation Law (Law).*fn1

After carefully reviewing the record we conclude that substantial evidence supports the board's undisputed findings. Negotiations for a new collective bargaining agreement began in August 1979. The predecessor contract (effective for years 1977-80) was due to expire the day before the first day of the 1980-81 academic year.*fn2 The Board of Trustees customarily establishes an academic year calendar in February or March, and, since 1970, the college has invariably opened in the last week of August.*fn3 In 1980, however, the Board of Trustees, because of pendent contract negotiations, adopted a school calendar in August which would begin on September 18, 1980, if the agreement was ratified by the union membership.*fn4

[ 81 Pa. Commw. Page 351]

On June 30, 1980, and weekly thereafter, the union's chief negotiator wrote to the college's president and chief negotiator offering "to extend the present collective bargaining agreement and all terms and conditions of employment on a day-to-day basis" during negotiations. By letter dated August 11, 1980, the college stated that it would "certainly consider the [union's] offer to extend the present . . . contract . . . when it expires on September 17, 1980." Tentative agreement was reached on September 17, 1980, and the faculty returned to work the next day.

The college initially asserts that claimants, as educational employes with reasonable assurances of working during the 1980-81 academic year, are ineligible under Section 402.1(1) of the Law (the between-terms benefit denial provision). As in Mountain View School District v. Unemployment Compensation Board of Review, 59 Pa. Commonwealth Ct. 510, 436 A.2d 1225 (1981) and Centennial School District v. Unemployment Compensation Board of Review, 56 Pa. Commonwealth Ct. 86, 424 A.2d 569 (1981), however, substantial evidence supports the board's finding that the college's delay in beginning the fall semester was due to the labor dispute rather than

[ 81 Pa. Commw. Page 352]

    being part of the "period between two successive academic years." Section 402.1(1).

The college next contends that claimants were not locked out, and that no labor dispute occurred between August 25 through September 17, 1980, because the 1977-80 labor agreement, by its terms, expired on September 17, 1980, the day before the first work day under the successor contract. First, we note that benefit eligibility is governed by "the factual matrix at the time of separation" not by the collective bargaining agreement terms. Gianfelice Unemployment Compensation Case, 396 Pa. 545, 551, 153 A.2d 906, 909 (1959). Second, the expiration of a labor contract is not a necessary pre-condition for a lockout. In Burleson Unemployment Compensation Case, 173 Pa. Superior Ct. 527, 533, 98 A.2d 762, 766 (1953), the court stated:

The gist of a lock-out is an employer's withholding of work from his employes in order to gain concession from them. It may be evidenced by closing the plant or by other acts which evince the purpose of forcing employes to accept onerous terms of employment. (Emphasis supplied.)

In the case at bar, the college ignored the union's repeated offers to continue working under the terms of the 1977-80 labor agreement. Instead, the college, by postponing the beginning of the 1980-81 academic year until a new contract was adopted, prevented claimants from working and therefore getting paid.*fn5

[ 81 Pa. Commw. Page 353]

Thus regardless of the status of the 1977-80 contract, claimants would not be paid until they returned to work. And, absent the adoption of a new labor agreement, the college would not agree to begin the 1980-81 academic year, so that claimants could resume working under the terms and conditions of the 1977-80 contract.

We conclude, therefore, that the college's rejection of the union's offer to work under the terms of the 1977-80 contract pending negotiations, and the consequent postponement of the school starting date, is tantamount to a "no-new-contract-no-work" position which this Court, in Mountain View and Centennial, determined to be a lockout. The college, by making the opening date of the fall semester contingent on ratification of a new contract, prevented claimants from working under the terms of the expiring contract and thus prevented the continuation of the status quo. Id.; see also Vrotney Unemployment Case, 400 Pa. 440, 163 A.2d 91 (1960).*fn6

Accordingly, we affirm.

[ 81 Pa. Commw. Page 354]


And Now, this 4th day of April, 1984 the orders of the Unemployment Compensation Board of Review, dated May 4, 1981, granting benefits to two token claimants, at Decision Nos. B-194942 and B-194943 are affirmed.


Orders affirmed.

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