Dissenting Opinion By
Judge COHN.Respectfully, I dissent. When the Union asked its members to stop working on July 1, 2001, without first offering to continue to work under the pre-existing terms and conditions of employment, I believe the work stoppage took the form of a “strike.” I do not believe that the futility *560doctrine is applicable here because there is no evidence that Employer would not have accepted an offer to continue had one been made. Therefore, I cannot agree that the work stoppage in this case was a lockout. Furthermore, during contract disputes, public policy strongly favors a rule that provides for certainty and predictability, and facilitates the ongoing operation of a business, with the concomitant employment and full wages for employees. The judicially created futility doctrine, in contravention of this policy, instead injects even more uncertainty and unpredictability into this area. '
As the majority correctly states, the test for determining whether a work stoppage is deemed a strike or a lockout is:
Have the employees offered to continue working for a reasonable time under the pre-existing terms and conditions of employment so as to avert a work stoppage pending the final settlement of the contract negotiations; and has the employer agreed to permit work to continue for a reasonable time under the pre-existing terms and conditions of employment pending further negotiations? If the employer refuses to so extend the expiring contract and maintain the status quo, then the resulting work stoppage constitutes a lockout....
Vrotney Unemployment Compensation Case, 400 Pa. 440, 444-45, 163 A.2d 91, 93-94 (1960). The determination of which party has the burden of proof depends on whether the work stoppage takes the form of a strike or a lockout. In Miceli v. Unemployment Compensation Board of Review, 519 Pa. 515, 549 A.2d 113 (1988), our Supreme Court stated that:
When ... the work stoppage takes the form of a strike, the burden is upon the union to show that it made the initial ‘peace’ move by offering to continue the status quo.... Thus, where the [ujnion membership votes to withhold services and the work stoppage is in the nature of a strike, claimants have the burden of showing that it was the employer who first refused to continue under the status quo. If such proof is produced, the withholding of services would not disqualify them for benefits. Conversely, where ... the work stoppage takes the form of a lockout, the burden is upon the employer to show that it was the claimants who first refused to continue the operations under the status quo.
Miceli, 519 Pa. at 522-28, 549 A.2d at 116 (citations omitted). In the present case, when the Union asked its employees to stop working on July 1, 2001, the work stoppage took the form of a “strike.” Thus, under Miceli the Union would have the burden to show that it made the initial “peace” move by offering to continue the status quo.
The Union argues at this point, that it did not need to make the initial peace move by virtue of the futility doctrine, a doctrine created by the Supreme Court as a narrow exception to the Vrotney test. Under this doctrine, when the employer has clearly foreclosed the possibility of accepting an offer to continue the status quo, the union need not make such an offer because to do so would be a futile effort. Irvin Unemployment Compensation Case, 198 Pa.Super. 308, 181 A.2d 854 (1962). In Irvin, the employer desired a drastic wage reduction during its negotiations for a new collective bargaining agreement (CBA) with the union representing its employees. The union had suggested a two-week extension of the status quo pending negotiations. At the end of this period, the union was going to offer another extension but, before it could, the employer’s president interjected and stated that the proposal made was final, and further negotiations or extensions of time would not be consid*561ered. The president also stated that anyone coming to work after the expiration of the CBA would be working on the employer’s terms. A work stoppage ensued. The Superior Court determined that although the union did not offer to maintain the status quo, it need not have done so because the employer had foreclosed any possibility of maintaining the status quo for a reasonable time by its president’s ultimatum. Consequently, the work stoppage was deemed a lockout.
Our Supreme Court, in recognizing the futility doctrine as an exception to the Vrotney test, has narrowly defined it. In Philco Corporation v. Unemployment Compensation Board of Review, 430 Pa. 101, 242 A.2d 454 (1968), the employer repeatedly and strenuously asserted that plant survival depended on the concessions it was demanding. Negotiations between the employer and the union broke down approximately 36 hours before the expiration of the CBA. At that time, the union membership voted to commence a work stoppage at the expiration of the CBA. The union argued that it would have been futile for it to offer to maintain the status quo at this point. The Supreme Court pointed out that often during the negotiation process, many concessions made by both sides occur only hours before a work stoppage is scheduled. The Court acknowledged that the employer drove a hard bargain with its demands, but determined that a hard bargaining line does not automatically invoke the futility doctrine. Rather, the Court determined that the union had foreclosed any possibility that the employer would accept an offer to maintain the status quo by voting 36 hours before the scheduled work stoppage. Because “[a]t no time did the union offer to extend the status quo; nor did the company make a similar offer, although several representatives did testify that work was available on Monday,” Philco, 430 Pa. at 107-08, 242 A.2d at 457 (emphasis in original), the Court determined that the futility doctrine did not apply. Consequently, the Court reversed the Board and deemed the work stoppage a strike.
In the case sub judice, I believe that the referee erred in determining that the work stoppage constituted a lockout by virtue of the application of the futility doctrine. Although the Union points to Employer’s July 1, 2001 letter, which indicated Employer would continue BC/BS benefits through COBRA, as evidence that it would have been futile to ask to maintain the status quo, the Union, by failing to offer to maintain the status quo, foreclosed any possibility that Employer could accept such an offer. As our Supreme Court noted in Borello v. Unemployment Compensation Board of Review, 490 Pa. 607, 417 A.2d 205 (1980), much of what occurs during the course of negotiations is posturing and rhetoric. Under the statute, claimants are entitled to benefits where there has been a lockout; any other work stoppage resulting from labor disputes is specifically excluded from coverage. The purpose underlying the standard in Vrot-ney is to enable the parties to continue working while negotiations proceed. See id., 400 Pa. at 443-44, 163 A.2d at 93. Thus, an employer benefits from the continued operation of its business, while its employees benefit from continuing employment and wages. Once a union makes an offer to continue working under the preexisting terms of the contract, it is clear to both sides that the employer must make a decision either to continue with the status quo, or to be forced to pay unemployment compensation benefits for any subsequent work stoppage. In applying the futility doctrine, we are required to look into a *562crystal ball to decipher, in hindsight, posturing for the sake of negotiations from what was an ultimatum.1 Thus, the certainty and predictability of the consequences of the parties’ actions is enhanced where the offer to continue is made. It is for these reasons that the futility doctrine exception to the general rule is so limited, and why the facts supporting it must be very clear before it can be invoked. Phil-co. The majority suggests in footnote 5 that unions should make a clear offer to continue working under the terms of an expired CBA before the work stoppage begins, thus recognizing that it is preferable. However, I believe the law requires such an offer.
In conclusion, I believe that the facts of this case are more similar to Philco than to Irvin. The Union, therefore, had an obligation, under the law, to offer to continue working under the terms of the CBA. Consequently, I would conclude that the work stoppage, as to all employees, was a strike and that unemployment compensation benefits should have been denied.
Accordingly, I dissent.
Judge LEAVITT joins in this dissent.
. The Union, ultimately, did make the offer to continue; however, it was made one month after Claimants had already stopped working. Arguably, the Union did not feel that making such an offer was futile.