decided: July 7, 1989.
GRINNELL CORPORATION, PETITIONER,
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT
PETITION FOR REVIEW (UNEMPLOYMENT COMPENSATION)
David Kresser, Charles Kelso and Ann Margaret Pointer, Fisher & Phillips, Atlanta, Georgia, and Richard P. Nuffort, Zimmerman, Pfannebecker & Nuffort, Lancaster, pro hac vice granted, for petitioner.
Quintes D. Taglioli, Markowitz & Richman, Allentown, notice of intervention, for intervenors, Beth Metzger, et al. and Samuel Huntoon, et al.
Colins and Smith, JJ., and Barbieri, Senior Judge.
[ 127 Pa. Commw. Page 300]
Grinnell Corporation (Grinnell) petitions for review of a decision of the Unemployment Compensation Board of Review (Board) dated May 27, 1988, which affirmed a referee's decision to award benefits to Beth E. Metzger and Samuel W. Huntoon, lead token claimants and intervenors in this appeal, and other union employees of Grinnell's Columbia, Pennsylvania plant. We affirm.
Local 376 of the International Molders and Allied Workers Union (Union) was the collective bargaining representative for claimants. Grinnell and the Union were parties to a
[ 127 Pa. Commw. Page 301]
collective bargaining agreement (agreement), which had an expiration date of midnight, October 10, 1987. The parties met at negotiating sessions prior to October 10 but were unable to agree upon the terms and conditions of a new agreement. However, Grinnell and the Union did agree that following October 10, 1987 claimants would continue to work under the same terms and conditions of the expired agreement, which situation continued through October 17, 1987.
Grinnell informed the Union by letter dated October 14, 1987, that if its final contract proposal was rejected at the Union meeting scheduled for October 17, Grinnell would unilaterally implement its proposal and would only allow claimants to return to work under those new conditions. Claimants rejected Grinnell's proposal on October 17 and offered in writing to continue working under the terms of the expired agreement while negotiations continued. Grinnell rejected this offer and unilaterally implemented its final proposal on October 17, 1987.*fn1 A work stoppage began on the premises on October 17, 1987 at 12:00 p.m. and work remained available only on the terms and conditions of Grinnell's last offer.
Claimants applied for unemployment compensation benefits and on November 5, 1987, the Office of Employment Security (OES) awarded benefits pursuant to Section 402(d) of the Unemployment Compensation Law (Law),*fn2 Employer timely appealed to the referee on November 18, 1987. The referee issued a decision on February 22, 1988, affirming the OES' award of benefits. The referee concluded that the
[ 127 Pa. Commw. Page 302]
work stoppage was a lockout within the meaning of Section 402(d) of the Law.
On appeal, the Board issued a decision and order on May 27, 1988, affirming the referee.*fn3 Grinnell petitions this Court for review of that decision.*fn4
The question of whether a work stoppage was the result of a strike or a lockout is a mixed question of law and fact subject to this Court's review. AVCO Corp. v. Unemployment Compensation Board of Review, 105 Pa. Commonwealth Ct. 316, 524 A.2d 531 (1987). The burden of proving that a lockout caused the work stoppage is on claimant. Where the party with the burden of proof prevails before the Board, the findings of fact are conclusive on appeal unless they are not supported by substantial evidence in the record. AVCO.
Under the test established by our Supreme Court in Vrotney Unemployment Compensation Case, 400 Pa. 440, 163 A.2d 91 (1960), which was later refined in Philco Corp. v. Unemployment Compensation Board of Review, 430 Pa. 101, 242 A.2d 454 (1968), 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 continued. Where a work stoppage takes the form of a strike and a constructive lockout is alleged, the burden of proof remains with the claimant to prove that it offered to continue working under the status quo and that the employer rejected that offer.
[ 127 Pa. Commw. Page 303]
It is undisputed in the instant matter that claimants satisfied their burden of proof. However, Grinnell argues that the Board erred by excluding as irrelevant evidence Grinnell attempted to introduce to show that the parties had reached an impasse in negotiations prior to its implementation of its final contract proposal and evidence it attempted to introduce to show that implementation of that final proposal was necessary to the continued operations of its Columbia, Pennsylvania plant. Grinnell maintains that it is entitled to a remand of this case to the Board so that it may introduce evidence on the issues of impasse and financial necessity. We disagree.
The Pennsylvania Supreme Court first addressed the possibility of impasse as an exception to the Vrotney standard in footnote 5 of its opinion in Local 730 v. Unemployment Compensation Board of Review, 505 Pa. 480, 480 A.2d 1000 (1984).
5. Nor can it legitimately be argued that the Vrotney rule is unfair to the Employer in that it could conceivably require the employer to continue under the terms of the pre-existing contract into perpetuity. Vrotney by its express language qualified the length of time during which this status quo must be maintained by stating: 'has the employer agreed to permit work to continue for a reasonable time under the pre-existing terms and conditions of employment . . . .' Vrotney Unemployment Compensation Case, 400 Pa. 440, 444, 163 A.2d 91, 93 (1960). Where it is evident that an impasse has been reached or good faith bargaining is impossible, Vrotney by its own terms is inapplicable.
Local 730, 505 Pa. 480, 489, n. 5, 480 A.2d 1000, 1005, n. 5. In Norwin School District v. Unemployment Compensation Board of Review (Belan), 510 Pa. 255, 507 A.2d 373 (1986), the court again addressed the concept of impasse during the bargaining process. The Norwin court defined impasse as the point at which the parties have exhausted
[ 127 Pa. Commw. Page 304]
their prospects of reaching an agreement and further negotiations would be fruitless. Id., 510 Pa. at 267, n. 9, 507 A.2d at 380, n. 9.*fn5
This Court has repeatedly considered the argument of impasse and has consistently rejected it, refusing to deviate from the rule announced in Vrotney. See e.g. Teledyne Vasco (this Court rejected employer's argument of impasse where the union offered to continue working under the terms of the expired contract and employer acknowledged that the parties had not exhausted fruitful negotiations); Babcock & Wilcox Co. v. Unemployment Compensation Board of Review, 119 Pa. Commonwealth Ct. 566, 547 A.2d 850 (1988) (employer's argument that it maintained the status quo for a reasonable time, 28 days, and that a bargaining impasse had been reached prior to its unilateral implementation of its final offer on the 28th day was rejected by this Court which concluded that the union met its burden of proving that it was willing to continue working while negotiations continued); and, Orr v. Unemployment Compensation Board of Review, 120 Pa. Commonwealth Ct. 45, 548 A.2d 360 (1988) (employer's argument that it had maintained the status quo for a reasonable time, 10 months, and that a bargaining impasse had been reached was rejected).
Only seven days had elapsed from the expiration of the agreement to when Grinnell notified the Union of its intention in three more days to unilaterally implement new terms. Further, the evidence clearly supports the Union's assertions that it remained at all times willing to continue negotiating towards eventual agreement. When given the opportunity by the referee to make an offer of proof relative to evidence it sought to introduce on impasse, Grinnell testified it was attempting to show the amount of time and money it expended on negotiations prior to the
[ 127 Pa. Commw. Page 305]
expiration of the agreement. (Notes of Testimony (N.T.) pp. 3-9.) Grinnell's argument that this evidence was relevant and improperly excluded is wholly unsupported and must be rejected. We conclude that such evidence is simply not probative of whether the parties had exhausted their chances of reaching an agreement. Therefore, we hold that the Board did not err in excluding it.
This Court has held that an employer's alteration of the status quo under an expired agreement, even after aiding in its maintenance for a reasonable time, constitutes a lockout unless employer can demonstrate that its action was essential to continued operations. Unemployment Compensation Board of Review v. Sun Oil Co. of Pennsylvania, 19 Pa. Commonwealth Ct. 447, 338 A.2d 710 (1975), aff'd, 476 Pa. 589, 383 A.2d 519 (1978); Babcock & Wilcox; General Telephone Co. of Pennsylvania v. Unemployment Compensation Board of Review, 100 Pa. Commonwealth Ct. 81, 514 A.2d 264 (1986). Again, we find the Board committed no error in its exclusion of the evidence Grinnell sought to introduce with respect to the issue of financial necessity.
Grinnell attempted to offer into evidence documents purporting to show that Grinnell in the past overpaid hourly employees in comparison to comparable jobs in other companies, as well as projected loss statements for the company. (N.T. pp. 11-15.) Grinnell also sought to introduce evidence to prove the seriousness of its efforts to convince its employees of the necessity to cut costs.*fn6 Grinnell testified that its financial losses were excessive and that it had notified the Union of its need to reduce labor costs in order
[ 127 Pa. Commw. Page 306]
to continue in successful operation.*fn7
At no time did Grinnell propose that maintenance of the status quo for a reasonable time would result in economic ruin or that its proposed terms were essential to its continued operations. Sun Oil; Babcock & Wilcox. In General Telephone, we held that an employer's burden of showing financial necessity is not met merely by presenting evidence tending to show that concessions are needed to improve competitive abilities.
Accordingly, the order of the Board dated May 27, 1988 is affirmed.
AND NOW, this 7th day of July, 1989, the order of the Unemployment Compensation Board of Review in the above-captioned matter is affirmed.
Accordingly, the order of the Board dated May 27, 1988 is affirmed.