Opinion
Argued May 11, 1979
August 22, 1979.
Unemployment compensation — Work stoppage — Strike — Unemployment Compensation Law, Act 1936, December 5, P.L. (1937) 2897 — Extra truck drivers — Interest in strike.
1. An employe is ineligible for benefits under the Unemployment Compensation Law, Act 1936, December 5, P.L. (1937) 2897, when his unemployment is due to a work stoppage other than a lockout unless the employe is not participating in or directly interested in the underlying labor dispute, is not a member of an organization participating in or directly interested in the dispute and is not in a class of workers, members of which are participating in or directly interested in the dispute. [223-4]
2. Extra truck drivers whose unemployment was shown to have resulted from lack of work occurring because of a strike are ineligible for unemployment compensation benefits when such drivers were directly interested in the underlying labor dispute which concerned a collective bargaining agreement covering their wages and benefits. [224-5]
Argued May 11, 1979, before Judges BLATT, DiSALLE, and MacPHAIL, sitting as a panel of three.
Appeal, No. 287 C.D. 1978, from the Orders of the Unemployment Compensation Board of Review in cases of In Re: Claim of Thomas Balsamo, No. B-152753; In Re: Claim of Edmund J. Borczuch, No. B-152754; In Re: Claim of Jack Bradac, No. B-152755; In Re: Claim of James H. Mansfield, No. B-152756; In Re: Claim of Owen F. Maloney, No. B-152757; In Re: Claim of Frank Nykiel, Jr., No. B-152758; In Re: Claim of Jay J. Nestor, No. B-152759; In Re: Claim of Mark M. Riggs, No. B-152761 and In Re: Claim of Rowland D. Webb, No. B-152760.
Applications to the Bureau of Employment Security for unemployment compensation benefits. Applications denied. Applicants appealed to the Unemployment Compensation Board of Review. Denial affirmed. Applicants appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
David S. Pollock, with him Jubelirer, Pass Intrieri, for petitioners.
GuruJodha Singh Khalsa, Assistant Attorney General, with him Richard Wagner, Chief Counsel, and Edward G. Biester, Jr., Attorney General, for respondent.
We are asked to decide whether the Unemployment Compensation Board of Review (Board) improperly affirmed the referee's denial of benefits to Thomas Balsamo et al. (Petitioners). We need only determine the applicability of Section 402(d) of the Unemployment Compensation Law (Act), Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P. S. § 802 (d), the labor dispute section, for Petitioners concede that if that section applies, they cannot prevail.
By stipulation, the claim of Petitioner Balsamo has been consolidated with the claims of seven other similarly situated claimants and counsel have agreed that the decision in Balsamo shall be determinative of claims of all other Petitioners.
Petitioners worked for Quaker State Coca-Cola Bottling Company (Employer) on a day to day basis as "extra" truck drivers, reporting to work only when notified to do so. Some were members of Teamsters Local 249, and some were not, but none worked after June 30, 1977, the day on which the collective bargaining agreement between Local 249 and Employer expired. Prior to June 30, Petitioner Balsamo had worked for 23 consecutive work days. From July 1, 1977 to September 1, 1977, members of Local 249 were on strike, and Employer did not call any of the Petitioners to work. In fact, none of Quaker State's employes worked, since, as the referee found, there was no work for anyone because of the strike.
We find support for this in the record. A witness for Employer, Mr. Burley, testified that Quaker State's office workers, factory workers, and mechanics "were laid off [because] local 249 was on strike and there was no work for them to do."
Section 402(d) of the Act renders an employe ineligible for compensation for any week:
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.
An analysis under this section requires an inquiry into whether a claimant's unemployment is due to a work stoppage which is the result of a labor dispute and, if so, whether the claimant falls within one of the three enumerated exceptions. In this case, Petitioners argue that given the tenuous nature of their employment, i.e., the fact that they could not report for work unless specifically requested to do so, they were unemployed prior to the strike, and that "[t]heir unemployment merely continued during the period of the labor dispute but was not caused by the labor dispute."
We disagree. We believe the record supports a finding that Petitioners were unemployed as a result of the strike. Petitioner Balsamo was called to work on each of the 23 consecutive work days prior to the strike but not thereafter. This was no coincidence. Surely Petitioners do not contend that had they applied for unemployment compensation the day before the strike, they would have qualified. Yet were we to award benefits, we would essentially be holding that Petitioners were eligible for unemployment compensation before they ever became unemployed. This we obviously cannot do.
Petitioners rely heavily on Jernstrom Unemployment Compensation Case, 202 Pa. Super. 209, 195 A.2d 922 (1963). The claimants there were actually laid off so that repairs could be made to equipment with which they worked, but before the equipment could be repaired, the company went on strike. The court awarded benefits, holding
that where unemployment is due to lack of work, the mere occurrence of a labor dispute will not change the legal causation of the unemployment unless work becomes available and is rejected by the employe because of the strike. Because the board found that the layoff was caused originally by lack of work and no work was available until after the strike ended, the fact that there was a strike is not a relevant factor.
Id. at 214, 195 A.2d at 925. Jernstrom is clearly distinguishable because the claimants there were actually laid off due to lack of work before the strike ever occurred, and thus presumably were eligible for benefits before such time. Here, Petitioners remained employed until the strike began.
Lastly, we note that none of Petitioners falls within the three exceptions set forth in the proviso to Section 402(d). Some of Petitioners were members of Local 249, but even as to the few who were not, it is abundantly clear that all had a direct interest in the dispute. The record reveals that the collective bargaining agreement between Local 249 and Employer provided that the wages and fringe benefits negotiated by the union covered all employes, including the non-member Petitioners. Thus, Petitioners had a direct interest in the dispute and are not entitled to compensation.
We affirm.
PER CURIAM ORDER
AND NOW, this 22nd day of August, 1979, the order of the Unemployment Compensation Board of Review, dated January 16, 1978, affirming the referee's denial of benefits to Thomas Balsamo et al., is hereby affirmed.