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DONNA A. BURK v. COMMONWEALTH PENNSYLVANIA (09/12/88)

decided: September 12, 1988.

DONNA A. BURK, 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 Donna A. Burk, No. B-253318.

COUNSEL

James A. Diamond, with him, Charles W. Johnston, Handler, Gerber, Johnston, Strokoff & Cowden, for petitioner.

No appearance for respondent.

Morton Hollander, with him, Thomas R. Hendershot, Hendershot, Koester and Worshtil, for intervenor, Gallitzin Apparel Corporation.

Judges MacPhail and Doyle, and Senior Judge Narick, sitting as a panel of three. Opinion by Senior Judge Narick.

Author: Narick

[ 119 Pa. Commw. Page 361]

Donna A. Burk (Claimant) appeals from an order of the Unemployment Compensation Board of Review (Board) affirming the denial of benefits under Section 402(d) (labor dispute) of the Unemployment Compensation Law (Law),*fn1 and not under Section 401(d)(1)*fn2 relied

[ 119 Pa. Commw. Page 362]

    upon by the referee in reversing the Office of Employment Security (OES) which granted benefits finding a "lockout" under Section 402(d). We reverse the Board.

This case presents three issues: (1) whether the work stoppage, as a matter of law, was a lockout or a strike; (2) whether strike benefits paid by the Union to Claimant, assuming a finding of a lockout, should be deducted from unemployment compensation payments; and (3) whether the Claimant waived her legal arguments by allegedly failing to raise them before the referee and the Board.

FACTUAL BACKGROUND

The Claimant was first employed in 1976 as a sewing machine operator by Hollyvent Manufacturing Company and its successor company, Gallitzin Apparel Company (Employer), which has recognized the International Ladies' Garment Workers Union, Local 424 (Union), since 1977 as the certified bargaining agent for its employees at all times relevant herein. Claimant is a member of the Union and its negotiating committee.

In 1982, the Employer and the Union entered into a collective bargaining agreement covering a three-year period from June 1, 1982 to on or about March 31, 1985. The parties being unable to negotiate a new agreement, the contract expired on March 31, 1985. Following the expiration of the agreement, the Employer continued to operate and the employees continued to work under the terms of the expired contract for approximately three months until all employees were laid

[ 119 Pa. Commw. Page 363]

    off on June 26, 1985 for a nine-month period because of a fire at the Employer's plant which caused the plant to be closed for repairs. During this layoff period, the Claimant and other employees received unemployment compensation benefits. At the time of Claimant's layoff on June 26, 1985, she was receiving $4.45 per hour plus piece rate for a 35-hour work week, and fringe benefits, including Blue Cross/Blue Shield, paid holidays, paid vacations, sick pay and pension benefits.

Since June 1985, when the plant was closed for repairs, the Employer and the Union continued to meet in an effort to negotiate a new collective bargaining agreement. On February 25, 1986, after explaining that concessions were necessary due to overseas competition, the Employer made a final and last offer, reducing the hourly rate to $3.50 per hour plus piece rate, mandating a 40-hour work week and eliminating all fringe benefits. This offer was rejected by the Union's negotiating committee. Shortly thereafter, the Employer, without notifying the Union, announced through newspaper ads that it would reopen the plant. The Employer opened the plant and commenced operations on March 12, 1986 under the terms of the Employer's above offer of February 25. The Claimant and other laid-off employees returned to work on March 12, 1986. The Claimant worked from March 12 to March 24, ...


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