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GILBERT BISHOP v. COMMONWEALTH PENNSYLVANIA (07/30/85)

decided: July 30, 1985.

GILBERT BISHOP, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT. DAVID A. KLOTZ, PETITIONER V. COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT. RICHARD P. GAVAGHAN, PETITIONER V. COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT. RALPH GEMI, PETITIONER V. COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT. JOHN L. KLING, PETITIONER V. COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT. NORMAN L. FRONK, PETITIONER V. COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT. GEORGE FISHER, JR., PETITIONER V. COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT. JOHN R. KLOTZ, SR., PETITIONER V. COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT. WILLIAM LAUMAN, PETITIONER V. COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT. ALBERT R. SINGER, PETITIONER V. COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT. MAHMOOD I. MUGHAL, PETITIONER V. COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT. LAWRENCE PRICE, PETITIONER V. COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT. ROBERT J. THOMSON, PETITIONER V. COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT. FRANKLIN H. BROBST, PETITIONER V. COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT



Appeals from the Orders of the Unemployment Compensation Board of Review in the cases of In Re: Claim of Gilbert Bishop, No. B-229075; Claim of David A. Klotz, No. B-229082; Claim of Richard P. Gavaghan, No. B-229070; Claim of Ralph Gemi, No. B-229077; Claim of John L. Kling, No. B-229071; Claim of Norman L. Fronk, No. B-229072; Claim of George Fisher, Jr., No. B-229073; Claim of John R. Klotz, Sr., No. B-229080; Claim of William Lauman, No. B-229074; Claim of Albert R. Singer, No. B-229081; Claim of Mahmood I. Mughal, No. B-229068; Claim of Lawrence Price, No. B-229078; Claim of Robert J. Thomson, No. B-229079; and Claim of Franklin H. Brobst, No. B-229076.

COUNSEL

William D. Marvin, Shuster and Beckman, for petitioners.

No appearance for respondent.

Richard L. Strouse, with him, John B. Langel, Ballard, Spahr, Andrews & Ingersoll, for intervenor, F.M. Weaver, Inc.

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

Author: Palladino

[ 90 Pa. Commw. Page 556]

Petitioners in these consolidated appeals are unemployment compensation claimants who are representative of the members of the United Steel Workers of America, Local 3187 (Union). 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 resulted from a strike rather than a lock-out by F.M. Weaver, Inc. (Employer).*fn2

[ 90 Pa. Commw. Page 557]

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 May 31, 1983. Immediately prior to the expiration of the agreement, the Union offered to continue working under the terms and conditions of the existing agreement for one year. The Employer did not accept this offer. At the time that the work stoppage began the Employer was seeking a $1.25 per hour reduction in the pay scale. Neither the Employer nor the Union offered to continue working under the terms and conditions of the existing agreement for a shorter period than one year while negotiations continued. When negotiations failed to produce a new agreement, the Union commenced a work stoppage on June 1, 1983. Work was available on June 1, 1983, but Petitioners did not report to work as scheduled.

Petitioners applied for unemployment compensation. The Office of Employment Security determined that the work stoppage existed because of a labor dispute other than a lock-out and denied benefits under § 402(d). This determination was affirmed by the referee and the Board.

Before this Court Petitioners argue that the referee's conclusion that the work stoppage was a strike is an error of law and is in capricious disregard of the evidence.

"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

[ 90 Pa. Commw. Page 558]

    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 strike or a lock-out is a mixed question of fact and law. Philco Corporation v. Unemployment Compensation Board of Review, 430 Pa. 101, 242 A.2d 454 (1968).

Under § 402(d) of the Law, an employee is ineligible for unemployment compensation for any week "[i]n 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."

The well established test for determining whether a work stoppage is the result of a lock-out or a strike was set forth by our Supreme Court in Vrotney Unemployment Compensation Case, 400 Pa. 440, 163 A.2d 91 (1960), as follows:

Have the employees offered to continue working for a reasonable time under the pre-existing terms and conditions of employment so as to avert a work stoppage pending the final settlement of the contract negotiations; and has the employer agreed to permit work to continue for a reasonable time under the pre-existing terms and conditions of employment pending further negotiations? If the employer refuses to so extend the expiring contract and maintain the status quo, then the resulting work stoppage constitutes a "lockout" and the disqualification for unemployment compensation benefits in the case of a "stoppage of work because of a labor dispute" does not apply.

Id. at 444-45, 163 A.2d at 93-94.

[ 90 Pa. Commw. Page 559]

In Philco, the Court further refined the test by stating: "[L]ogically the test of whether a work stoppage resulted from a strike or a lockout requires us to determine which side, union or management, first refused to continue operations under the status quo after the contract had technically expired, but while negotiations were continuing." Id. at 103, 242 A.2d at 455.

Petitioners first argue that the referee and the Board erred as a matter of law in concluding that the work stoppage was a strike on the basis that the Union offered to continue working under the status quo for one year and the Employer refused this offer. The referee and the Board premised this conclusion on their determination that one year is not a reasonable period under the circumstances because it would bind the Employer to the terms and conditions of the existing agreement, from which it was trying to escape, for a full year and the Union would then have little or no incentive to bargain for that period. We agree.

Furthermore, our careful review of the record reveals that the Union's offer to continue working under the status quo for one year was in actuality an offer for a new one-year contract on the same terms and conditions as the expiring contract. It was not an offer to continue the status quo during negotiations. The Union, therefore, did not meet its burden of proving that it offered to continue working under the status quo for a reasonable period of time pending final settlement of the contract negotiations. See Vrotney at 444-45, 163 A.2d at 93-94.

Petitioners next argue that the referee capriciously disregarded undisputed evidence which established that any offer made by the Union to continue work under the status quo for any length of time would have been rejected by the Employer. Therefore, ...


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