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05/22/97 SOUTHEASTERN PENNSYLVANIA TRANSPORTATION

May 22, 1997

SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY, PETITIONER
v.
UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT



Appealed From No. B-347434. State Agency Unemployment Compensation Board of Review.

Before: Honorable Rochelle S. Friedman, Judge, Honorable Bonnie Brigance Leadbetter, Judge, Honorable Charles A. Lord, Senior Judge. Opinion BY Judge Leadbetter.

The opinion of the court was delivered by: Leadbetter

OPINION BY JUDGE LEADBETTER

FILED: May 22, 1997

The Southeastern Pennsylvania Transportation Authority ("SEPTA" or "Employer") appeals from a decision of the Unemployment Compensation Board of Review ("Board") granting unemployment benefits to Richard J. Lechette, et al. ("Claimant"), a member of the United Transportation Union Local 1594. At issue is whether Claimant was entitled to unemployment benefits where Employer refused to continue employment of Claimant under the terms of their expired contract during ongoing contract negotiations while, at the same time, the Transportation Workers Union Local 234 held a work stoppage strike against Employer. The statutory provision at issue is § 402(d) of the Unemployment Compensation Law, Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(d) ("Law" or " § 402(d)"). Section 402(d) provides:

An employee shall be ineligible for compensation for any week--

(d) In which his unemployment is due to a stoppage of work, which exists because of a labor dispute (other than a lock-out) at the factory, establishment or other premises at which he is or was last employed: Provided, That this subsection shall not apply if it is shown that (1) he is not participating in, or directly interested in, the labor dispute which caused the stoppage of work, and (2) he is not a member of an organization which is participating in, or directly interested in, the labor dispute which caused the stoppage of work, and (3) he does not belong to a grade or class of workers of which, immediately before the commencement of the stoppage, there were members employed at the premises at which the stoppage occurs, any of whom are participating in, or directly interested in, the dispute.

43 P.S. § 802(d).

Facts

Claimant is a member of the United Transportation Union Local 1594 ("UTU") which represents the operating employees of SEPTA's Suburban Transit Division. Operating employees include bus operators, starters, clerks, conductors, trolley operators and high speed line operators. Claimant is not a member of the Transportation Workers Union Local 234 ("TWU") which represents the maintenance employees of SEPTA's Suburban Transit Division. Maintenance employees maintain and repair the buses, trolleys, high speed lines, rights of way, electrical system, buildings and bridges in the Suburban Transit Division.

The UTU and the TWU do not conduct joint contract negotiations, nor do they share a collective bargaining agreement. Each union separately negotiates contracts with SEPTA. Historically, negotiations between the TWU and SEPTA have been concluded prior to the Conclusion of negotiations between the UTU and SEPTA, and the UTU then has negotiated contracts which mirrored the wage increases obtained by the TWU.

As of April 1, 1995, both the UTU and the TWU were separately negotiating contracts with Employer. The UTU's contract was scheduled to expire as of 12:01 a.m. on April 2, 1995. On April 1, 1995, prior to the expiration of the contract, the UTU offered to continue work under the terms and conditions of the pre-existing contract while negotiations continued. Employer, in a letter dated April 1, 1995, rejected the UTU's offer and stated that UTU members, like Claimant, would be allowed to work only if the UTU agreed to several conditions. *fn1 Also on April 1, 1995, the TWU told Employer that they planned to go out on strike as of 12:01 a.m. on April 2, 1995. In a letter dated April 2, 1995, Employer informed the UTU (1) that no work was available to UTU members due to the TWU's strike and (2) that "the Contract and all of its provisions, terms and conditions, including all the work rules and practices previously agreed to, terminated as of midnight April 1, 1995". *fn2

From April 2, 1995 through April 9, 1995, all UTU members were prohibited from working. On April 10, 1995 the TWU and SEPTA reached an agreement and the TWU ended its strike. Also on April 10, 1995, Claimant and the other UTU members returned to work. The UTU members returned to work under the terms of the pre-existing contract and without any new agreement. They continued to work without a formal contract for several months, and no work stoppages occurred at SEPTA's ...


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