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AVCO CORPORATION v. COMMONWEALTH PENNSYLVANIA (04/16/87)

decided: April 16, 1987.

AVCO CORPORATION, LYCOMING DIVISION, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT



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

COUNSEL

Don A. Banta, Maphin, Banta & Cox, with him, Charles J. McKelvey and William R. Tait, Jr., McNerney, Page, Vanderlin & Hall, for petitioner.

No appearance for respondent.

Quintes D. Taglioli, with him, Richard H. Markowitz, for intervenors, Paul D. Batkowski, Jesse L. Fry and Kenneth D. Simcox.

President Judge Crumlish, Jr., Judges Craig, MacPhail, Doyle, Barry, Colins and Palladino. Opinion by Judge Palladino. Dissenting Opinion by Judge Barry.

Author: Palladino

[ 105 Pa. Commw. Page 317]

AVCO Corporation, Lycoming Division (petitioner) appeals an order of the Unemployment Compensation

[ 105 Pa. Commw. Page 318]

Board of Review (Board) awarding benefits to Paul D. Batkowski, a token claimant representing members of the United Auto Workers AFL-CIO Local 787 employed by petitioner. The Board affirmed the referee's decision which awarded benefits to claimant under Section 402(d) of the Unemployment Compensation Law (Law).*fn1 Section 402(d) of the Law bars a claimant from receiving compensation for any week in which his unemployment was because of a stoppage of work existing as a result of a labor dispute, other than a lock-out by employer. The referee concluded that although the initial action by the union members was a strike, it was converted to a lock-out when petitioner refused to accept the union's August 4, 1983 offer to return to work under the terms and conditions of the unexpired union contract. For the reasons which follow, we affirm.

In anticipation of the expiration of the collective bargaining agreement between petitioner and claimant's union, the parties commenced negotiation on a new agreement. On May 23, 1983 and June 13, 1983, the union offered to continue working under the terms of the existing agreement while negotiation continued. Petitioner rejected this offer. At 12 o'clock a.m. on June 17, 1983 the current agreement expired and at 12:01 a.m. on June 18, 1983 the union commenced a work-stoppage. Thereafter, negotiations continued and on August 4, 1983 the union again offered to return to work under the terms and conditions of the prior agreement. This offer was not accepted.*fn2

[ 105 Pa. Commw. Page 319]

Claimant filed for unemployment compensation which was denied because the Office of Employment Security (OES) determined that claimant's unemployment was occasioned by a strike against petitioner and, thus, was non-compensable under Section 402(d) of the Law. Both the referee and the Board affirmed this decision. Claimant and two others, as token representatives of the union members, appealed to this Court asserting that the work-stoppage was the result of a lock-out rather than a strike.

We addressed these contentions in Batkowski v. Unemployment Compensation Board of Review, 89 Pa. Commonwealth Ct. 51, 491 A.2d 953 (1985). Although we concluded that the initial action of the union constituted a strike, we vacated the Board's order and remanded for a determination of whether the August 4, 1983 offer to return to work under the terms and conditions of the prior agreement converted the strike to a lock-out. On remand, the referee again determined that the union's action initially constituted a strike and made the following additional findings of fact: "10. On August 4, 1983, the Union offered to return to work under the terms of the old agreement; 11. The Union's ...


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