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PAUL D. BATKOWSKI v. COMMONWEALTH PENNSYLVANIA (04/30/85)

decided: April 30, 1985.

PAUL D. BATKOWSKI, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT. JESSE L. FRY, PETITIONER V. COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT. KENNETH D. SIMCOX, PETITIONER V. COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT



Appeals from the Order of the Unemployment Compensation Board of Review in cases of In Re: Claims of Paul D. Batkowski, No. B-224892. Jesse L. Fry, No. B-224893, and Kenneth D. Simcox, No. B-224894.

COUNSEL

Quintes D. Taglioli, with him, Richard H. Markowitz, Markowitz & Richman, for petitioners.

No appearance for respondent.

John W. Ferron, with him, Don A. Banta, Naphin, Banta & Cox, and William R. Tait, Jr., McNerney, Page, Vanderlin & Hall, for intervenor, Avco Lycoming Division, Avco Corporation.

Judges Doyle, Colins and Palladino, sitting as a panel of three. Opinion by Judge Palladino. Judge Williams, Jr., did not participate in the decision in this case.

Author: Palladino

[ 89 Pa. Commw. Page 53]

Petitioners in these consolidated appeals are token unemployment compensation claimants who represent the members of the United Auto Workers, AFL-CIO Local 787 (Union). In its decision below, the Unemployment Compensation Board of Review (Board) affirmed a referee's decision denying benefits under Section 402(d) of the Unemployment Compensation Law (Law),*fn1 concluding that Petitioners' unemployment was due to a strike, rather than a lock-out by Avco Lycoming Division of Avco Corporation (Employer).*fn2

The relevant facts, as found by the referee and adopted by the Board, are as follows. The Employer and the Union were parties to a collective bargaining agreement which expired on June 17, 1983. After negotiations failed to produce a new agreement, the Union commenced a work stoppage at 12:01 A.M. on June 18, 1983. At the time of the commencement of the work stoppage, work was available to Union members under the pre-existing terms and conditions of

[ 89 Pa. Commw. Page 54]

    employment. Petitioners neither reported nor attempted to report to work subsequent to commencement of the work stoppage.

Petitioners applied for unemployment compensation as token representatives of all members of the Union.*fn3 The Office of Employment Security (OES) found that Petitioners' unemployment was due to a work stoppage which existed because of a labor dispute other than a lock-out and denied benefits under ยง 402(d). After a hearing on appeal, the referee affirmed OES's determination. The Board affirmed the referee's decision.

"A claimant whose employment has been interrupted by a work stoppage arising out of a labor dispute bears the burden of proving that the stoppage resulted from a lockout." McCormick Dray Lines v. Unemployment Compensation Board of Review, 74 Pa. Commonwealth Ct. 181, 184, 459 A.2d 74, 76 (1983). Where the party with the burden of proof does not prevail before the Board, our scope of review is limited to determining whether the Board's findings of fact are consistent with each other and with the conclusions of law and can be sustained without a capricious disregard of competent evidence. Pennsylvania State Police v. Unemployment Compensation Board of Review, 79 Pa. Commonwealth Ct. 46, 468 A.2d 533 (1983). The question of whether a work stoppage is a ...


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