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JOSEPH C. LOZARO v. COMMONWEALTH PENNSYLVANIA (08/29/85)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: August 29, 1985.

JOSEPH C. LOZARO, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT

Appeal from the Order of the Unemployment Compensation Board of Review in the case of In Re: Claim of Joseph C. Lozaro (Token), No. B-226278-B.

COUNSEL

Joel M. Scheer, Fishbone, Refowich & Scheer, for petitioner.

No appearance for respondent.

Michael F. Healy, Newman & Holtzinger, P.C., with him, Bruce F. Bratton, Connelly, Martsolf & Reid, for intervenor, Harsco Corporation.

Judges Craig and Colins, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Colins. Judge Barry did not participate in the decision in this case.

Author: Colins

[ 91 Pa. Commw. Page 429]

Joseph C. Lozaro (petitioner)*fn1 appeals an order of the Pennsylvania Unemployment Compensation Board of Review, affirming a referee's decision denying him benefits under the provisions of Section 402(d) of the Pennsylvania Unemployment Compensation Law (Law).*fn2

[ 91 Pa. Commw. Page 430]

Petitioner was employed by Manganese Steel, a division of Harsco Corporation (employer) for a period of 18-1/2 years, and is a member of Local 1079 of the United Steel Workers of America (Union). A collective bargaining agreement existed between the employer and the union with an effective date of September 1, 1980 and an expiration date of August 31, 1983.

On September 1, 1983 at 7:00 A.M., petitioner and 195 other union members commenced a work stoppage due to a labor dispute.*fn3 Peaceful picket lines were set up at the site of the labor dispute and continued throughout the period of the strike. However, neither the petitioner nor any other union members made any attempt to report for work during the period of the strike, even though continuing work was available to them under the same terms and conditions of the expired collective bargaining agreement,*fn4 and even though the gates were never locked at the employer's plant.

Prior to the strike, the employer announced that two of its divisions, including the Manganese Steel

[ 91 Pa. Commw. Page 431]

Division, would be closing due to economic circumstances.*fn5 As a result of this announcement, an agreement was entered into by the Union and the employer whereby the employees of the affected division would have the right to "bump into" position with a third division of employer.*fn6

Petitioner filed for unemployment benefits with the Office of Employment Security (OES). The OES denied benefits to petitioner under the provisions of Section 402(d) of the law. The referee affirmed the decision of the OES and petitioner appealed to the Board. On January 23, 1984, the Board adopted the referee's determination and affirmed his decision. The petitioner filed a request for reconsideration, which was granted on February 17, 1984.*fn7 On May 24, 1984, the Board reinstated its order dated January 23, 1984, and reaffirmed the decision of the referee. This appeal followed.

"This Court has held that where a work stoppage takes the form of a strike and a constructive lockout is alleged, the employees have the burden to demonstrate their willingness to maintain the status quo and the employer's refusal to do so." Grzech v. Unemployment Compensation Board of Review, 56 Pa. Commonwealth Ct. 9, 14, 423 A.2d 1364, 1367 (1981) (citations omitted). In addition, a determination of which

[ 91 Pa. Commw. Page 432]

    side, union or management, first refused to continue operations under the status quo after the contract had technically expired, but while negotiations were continuing, must be made in order to conclude whether a work stoppage was the result of a strike or lockout. Centennial School District v. Unemployment Compensation Board of Review, 56 Pa. Commonwealth Ct. 86, 424 A.2d 569 (1981).

Petitioner alleges that the employer changed the status quo prior to the expiration of the collective bargaining agreement by offering to alter the benefit package*fn8 in exchange for a new agreement, and he cites Norwin School District v. Unemployment Compensation Board of Review, 80 Pa. Commonwealth Ct. 67, 471 A.2d 904 (1984), to support his proposition. In Norwin, our court determined that the status quo had been altered prior to the expiration of the agreement because the employer unilaterally implemented changes to the benefit package.*fn9 In the matter sub judice, the employer merely offered a change during negotiations. Furthermore, the employer offered to extend the collective bargaining agreement 30 days after its expiration without concessions.

The petitioner also alleges, in the alternative, that two of the employer's divisions were to be deemed shut down as of October 1, 1983; therefore, employees should have been granted benefits. Nothing in the record indicates that a shutdown occurred. Furthermore, there was an agreement that would have provided

[ 91 Pa. Commw. Page 433]

    continuing employment for employees of the affected divisions.

Benefits are properly denied when evidence supports findings that the unemployment was the result of a work stoppage resulting from a labor dispute in which the claimants participated other than a lockout, rather than from a shortage of work, although contrary evidence was also received. Questions of credibility are for the factfinder, not the reviewing court. Grove v. Unemployment Compensation Board of Review, 49 Pa. Commonwealth Ct. 471, 411 A.2d 577 (1980).

A review of the record indicates that the Referee chose to believe the employer's witness in several key areas. The record contains sufficient evidence to support the Referee's finding that no attempt was made by the Union to maintain the status quo and that its members' unemployment was due to a strike, rather than a lockout.

Accordingly, the decision of the Board must be affirmed.

Order

And Now, August 29, 1985, the order of the Unemployment Compensation Board of Review, dated May 24, 1984, at No. B-226278-B is hereby affirmed.

Judge Barry did not participate in the decision in this case.

Disposition

Affirmed.


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