Opinion
Argued December 16, 1982
March 24, 1983.
Unemployment compensation — Work stoppage — Unemployment Compensation Law, Act of December 5, 1936, P.L. (1937) 2897 — Wilful misconduct — National Labor Relations Act, 29 U.S.C. § 158(d) — Constitution of the United States, Article VI — Supremacy Clause.
1. An employe discharged for participating in an illegal strike called without compliance with notice requirements of the National Labor Relations Act, 29 U.S.C. § 158(d), to which the employe was subject, is properly found to have disregarded expected behavior standards so as to be guilty of wilful misconduct and to be ineligible for benefits under the Unemployment Compensation Law, Act of December 5, 1936, P.L. (1937) 2897. [115]
2. The fact that a decision in an unemployment compensation case may conflict with the interpretation given by federal authorities as to whether certain conduct was violative of federal labor statutes does not bar Pennsylvania authorities from finding that such conduct constitutes wilful misconduct precluding receipt of unemployment compensation benefits by an employe discharged as a result of such conduct. [116]
3. A determination that a striking employe ineligible for benefits under provisions of the Unemployment Compensation Law, Act of December 5, 1936, P.L. (1937) 2897, could become eligible if the employer exercises its right to discharge such employe under provisions of federal labor statutes would encourage strikers to violate such statutory provisions and could do violence to the Supremacy Clause of Article VI of the Constitution of the United States. [116-17]
Argued December 16, 1982, before Judges ROGERS, WILLIAMS, JR. and MacPHAIL, sitting as a panel of three.
Appeals, Nos. 1875 C.D. 1981 and 2714 C.D. 1981, from the Orders of the Unemployment Compensation Board of Review In re: Claim, of Howard W. Anderson, No. B-197119; Claim of Kenneth Bryson, No. B-197120; Claim of Edward M. Cloud, No. B-197121; Claim of Charles Young, Jr., No. B-197122; Claim of John Webster, No. B-197123; Claim of Robert P. Davis, No. B-197124; Claim of Robert L. Waters, No. B-197125; Claim of Charles Hannum, No. B-197126; Claim of Dennis Charron, No. B-197127; Claim of Charles R. Puceta, No. B-197128; Claim of Willie Peterson, No. B-197129; Claim of Gene Bennett, No. B-197130; Claim of James G. Dydo, No. B-197131; Claim of John W. Snyder, No. B-197132; Claim of William J. Brown, No. B-197133; Claim of Ray J. Greet, No. B-197134; Claim of Mervin I. Baker, No. B-197135; Claim of David L. Fenimore, No. B-197136; Claim of David Eshleman, No. B-197137; Claim of Howard Burton, No. B-197138; Claim of Raymond A. Robinson, No. B-1971739; Claim of Sidney E. Reason, Jr., No. B-197140; Claim of Richard D. Taney, No. B-197141; Claim of John E. Moran, No. B- 197142; Claim of Antonio Giordano, No. B-197143; Claim of Thomas V. Underwood, No. B-197144; Claim of Caeser L. Evans, No. 197145; Claim of Von L. Jones, No. B-197146; Claim of Herbert C. Dilworth, No. B-197147, and Claim of William M. Wood, No. B-200263.
Applications to the Office of Employment Security for unemployment compensation benefits. Benefits granted. Employer appealed to the Unemployment Compensation Board of Review. Award affirmed. Employer appealed to the Commonwealth Court of Pennsylvania. Held: Reversed.
Edward Griffith, with him Steven L. Sugarman, Duane, Morris Heckscher, for petitioner.
Jennifer Berke, with her Thomas E. Seus, Kelly, Harrington, McLaughlin Foster, for intervenors.
No appearance for respondent.
Penflex, Inc. (Employer) has brought this appeal from orders of the Unemployment Compensation Board of Review (Board) which awarded unemployment compensation benefits to Claimants.
Thirty former employees of Employer.
The facts in this case are undisputed. Claimants were members of a collective bargaining unit represented by Plumbers Union Local 690 (Union). The collective bargaining agreement in existence between Employer and Union had an expiration date of June 30, 1980. Employer and Union failed to reach agreement on a new contract by July 1, 1980. The Union advised its membership not to engage in a work stoppage; the Union had not provided the thirty day notice to the Federal Mediation Conciliation Service required by Section 8(d) of the National Labor Relations Act (NLRA), 29 U.S.C. § 158(d) (1976). Claimants disregarded their Union's advice and chose not to report for work on July 1. That same day Employer discharged the Claimants for participating in a work stoppage in violation of Section 8(d) of the NLRA.
[W]here there is in effect a collective bargaining contract . . . the duty to bargain collectively shall also mean that no party to such contract shall terminate or modify such contract, unless the party desiring such termination or modification —
. . .
The overriding principle involved in the decision of whether to grant or deny unemployment benefits is succinctly stated in Section 3 of the Unemployment Compensation Law (Law): "[C]ompensation [is intended to be] for loss of wages by employes during periods when they become unemployed through no fault of their own." (Emphasis added). In furtherance, of this principle, Section 402 of the Law contains a number of ineligibility provisions; included among these provisions are subsection (d), ineligibility as a result of a strike, and subsection (e), ineligibility as a result of willful misconduct. In the present case, Employer contends that the Claimants are ineligible as a result of willful misconduct; i.e. an illegal work stoppage under Section 8(d) of the NLRA. In support thereof, Employer cites to such cases as Progress Manufacturing Co. v. Unemployment Compensation Board of Review, 406 Pa. 163, 176 A.2d 632 (1962), Bays v. Unemployment Compensation Board of Review, 62 Pa. Commw. 421, 437 A.2d 72 (1981) and Houck v. Unemployment Compensation Board of Review, 45 Pa. Commw. 587, 405 A.2d 1062 (1979) for the proposition that a claimant is ineligible for benefits due to willful misconduct if fired as a result of an illegal work stoppage.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P. S. § 802(e).
Claimants do not dispute Employer's right to discharge them for violating Section 8(d). See United Furniture Workers of America v. N.L.R.B., 336 F.2d 738 (D.C. Cir.), cert. denied, 379 U.S. 838 (1964).
Claimants, however, contend that these cases are distinguishable from the matter at hand. Claimants argue that the "illegality" of these prior cases involved engaging in a strike where an existing collective bargaining agreement prohibited a strike ( i.e. Bays) or engaging in a "recognitional" strike where a petition for recognition was outstanding before the Pennsylvania Labor Relations Board ( Houck). In the present case, the collective bargaining agreement had expired prior to the work stoppage. Claimants emphasize that the only "illegality" involved here was a violation of NLRA requirements and "that a compensation proceeding is not the place to adjudicate an alleged collective bargaining agreement violation or a claimed unfair labor practice." Carl Colteryahn Dairy v. Unemployment Compensation Board of Review, 46 Pa. Commw. 319, 326, 407 A.2d 71, 74 (1979).
See Birdsboro Corp. v. Unemployment Compensation Board of Review, 59 Pa. Commw. 462, 466 n. 4, 430 A.2d 361, 363 n. 4 (1981).
The present case presents us with a unique and difficult situation. The actions here clearly are not the same type of "illegal" work stoppage as we have previously held to be willful misconduct. However, the standard for willful misconduct applied in these cases is the same standard used in all willful misconduct cases: "Willful misconduct includes a disregard of standards which an employer has a right to expect of an employee." Houck, 45 Pa. Commw. at 589, 405 A.2d at 1064. We believe that where, as here, Employer and Union have undertaken to engage in collective bargaining under the aegis of the NLRA, then the Employer has a right to expect that the notice provisions of Section 8(d) will be complied with prior to an employee strike. We therefore conclude that the actions herein were, as a matter of law, willful misconduct, disqualifying Claimants from benefits.
The question of whether behavior constitutes willful misconduct is a question of law subject to review by this Court. Northeastern Hospital v. Unemployment Compensation Board of Review, 64 Pa. Commw. 332, 337, 439 A.2d 1337, 1340 (1982).
In making this decision, we are cognizant of the fact that conflicting decisions by the Board and federal authorities could be made regarding whether Section 8(d) was violated. However, the possibility of conflicting results does not bar the Board or this Court from determining whether, as a matter of Pennsylvania law, Claimants' actions constituted willful misconduct. See Moran v. Unemployment Compensation Board of Review, 42 Pa. Commw. 195, 400 A.2d 257 (1979).
See also Chew v. State Correctional Institution at Dallas, Bureau of Correction, 50 Pa. Commw. 122, 412 A.2d 260 (1980), wherein a conflict arose between a Pennsylvania Civil Service Commission decision and a Board decision regarding Claimant's violation of a Civil Service Commission regulation. While we held in that case that the record did not support the Board's finding of a violation, we there recognized that the Civil Service Commission's conclusion of non-violation would not be binding on the unemployment compensation authorities. Id. at 129, 412 A.2d at 209. Claimants in the present matter admit that no notice was given under Section 8(d).
Furthermore, our decision is influenced by the fact that if we were to accept the Claimants' and Board's arguments, then a striker, ineligible under the provisions of Section 402(d) of the Law, would become eligible for benefits upon the exercise by the employer of its right to discharge the striker for violations by the striker of Section 8(d) of the NLRA. We therefore would be encouraging strikers to violate Section 8(d). Such a result would, we believe, so inhibit the exercise by an employer of its federal rights that a serious question of invalidity under the Supremacy Clause of the United States Constitution would be raised. Cf. Unemployment Compensation Board of Review v. Sun Oil Co., 19 Pa. Commw. 447, 338 A.2d 710 (1975), aff'd, 476 Pa. 589, 383 A.2d 519 (1978).
U.S. Const. art. VI, cl. 2.
We reverse.
ORDER
The orders of the Unemployment Compensation Board of Review, Decision Numbers B-197119 through and including B-197147, all dated July 13, 1981, and Decision Number B-200263, dated October 15, 1981, are hereby reversed.
(3) notifies the Federal Mediation and Conciliation Service within thirty days after [providing written notice to the other party sixty days prior to the expiration date of the contract].