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ABINGTON SCHOOL DISTRICT v. COMMONWEALTH PENNSYLVANIA (11/27/87)

decided: November 27, 1987.

ABINGTON SCHOOL DISTRICT, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT



Appeal from the Order of the Unemployment Compensation Board of Review, in case of In Re: Claim of H. Russell Pittman, No. B-178582-B.

COUNSEL

Karl A. Fritton, with him, Joseph C. Rudolf, Sprecher, Felix, Visco, Hutchison & Young, for petitioner.

No appearance for respondent.

A. Martin Herring, with him, John J. Donahue, Herring & Donahue, for intervenors, H. Russell Pittman and all others similarly situated.

William Fearen, with him, Michael I. Levin and Steven A. Stine, Cleckner and Fearen, for amicus curiae, Pennsylvania School Boards Association.

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

Author: Doyle

[ 111 Pa. Commw. Page 314]

The Abington School District (School District) petitions for review of an order of the Unemployment Compensation Board of Review (Board) reversing a referee's determination that H. Russell Pittman (Claimant)*fn1 was ineligible for benefits under Section 402(d) of the Unemployment Compensation Law (Law)*fn2 for the compensable weeks ending September 10, 1977 through September 24, 1977 due to his participation in a teachers' strike by members of the Abington Education Association (AEA), the intervenor here. The Board determined that the work stoppage was a lockout, not a strike, and also ruled that under Sections 4(u),*fn3 401,*fn4 and 401(d)(1)*fn5 of the Law, Claimant was "unemployed" during the weeks at issue and therefore eligible for benefits. We affirm.

This case arises out of a September 1977 labor dispute between the School District and the AEA. In January 1977, the parties began negotiation of a collective bargaining agreement to succeed a pact set to expire on June 30, 1977. Despite a number of bargaining sessions, as of August 24, 1977, no new agreement had been reached, and school was scheduled to open on September 6, 1977.

[ 111 Pa. Commw. Page 315]

On August 24, the AEA offered to return to work without a contract on September 6, 1977. On August 30, the School District rejected the AEA's proposal, but offered to extend the expired contract until a new agreement could be reached. The union, however, refused to accept this offer because of the "no strike" clause contained in the old agreement.

As a consequence of the impasse, the School District by formal action delayed the opening of school to September 12 and later to September 19, adjusting the school calendar accordingly. On September 15, however, an interim agreement was reached providing teachers with a five percent wage increase and requiring the AEA to give forty-eight hours' notice of an intent to strike. On that same date, the School District revised the school calendar to provide that the first teacher day would be September 26.

Eventually, a new collective bargaining agreement was reached in January 1978. The agreement was made retroactive to the date of the expired contract, and the school calendar remained at 184 teaching days between September and June. The teachers were paid for all days worked during the 1977-78 school year.

After a protracted procedural process,*fn6 the Board awarded benefits to the Claimant for the three-week period

[ 111 Pa. Commw. Page 316]

    during which the opening of school was delayed. The School District petitions ...


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