Presbyterian SeniorCare v. Unemployment Compensation Board of Review

DISSENTING OPINION BY

Judge SMITH-RIBNER.

I respectfully disagree with the majority’s decision to reverse the order of the Unemployment Compensation Board of Review, which held that Claimants were not ineligible under Section 402(d) of the Unemployment Compensation Law, 43 P.S. § 802(d), for benefits for weeks ending July 17, 2004 and “thereafter.” The majority would deny Claimants benefits for any period of their unemployment between the union’s strike of June 1, 2004 and the workers’ return to work as of December 27, 2004. Under the majority’s view, Employer (Presbyterian SeniorCare) made a bona fide effort to maintain the status quo, despite the Board’s findings to the contrary. Employer suggests that if the Court agrees that the strike was converted to a lockout as of July 10, 2004 as the Board found, then this Court “at the least” should limit Claimants’ eligibility for benefits only for the weeks ending July 17, 2004 through August 30, 2004. That period takes into account Employer’s August 23, 2004 offer to return to work.

I disagree with the majority because its ruling is based on a usurpation of the role and authority of the Board, as the ultimate fact finder in unemployment compensation cases. See Taylor v. Unemployment Compensation Board of Review, 474 Pa. 351, 378 A.2d 829 (1977). The Board is empowered to make its own findings as to witness credibility and evidentiary weight, Peak v. Unemployment Compensation Board of Review, 509 Pa. 267, 501 A.2d 1383 (1985), and they are conclusive on appeal so long as they are supported by substantial evidence in the record. Taylor. In this case, the majority has made its own findings as to what evidence should be credited and *980what weight should be accorded the evidence. That is not the Court’s role or function in these unemployment compensation cases.

Based on the Board’s findings, I conclude that Claimants are eligible for benefits at least for the weeks ending July 17, 2004 (when Employer implemented its final proposed changes to the contract including increase in wages and changes to health benefits) through August 30, 2004 (based on Employer’s offer of August 23 for Claimants to return to work under terms and conditions of the expired contract, which Claimants refused). The Board also found that during the work stoppage initiated by the union on June 1, 2004, Employer hired new employees and had no intention of discharging them after the strike.

Due to Employer’s unilateral implementation of its final proposal to the parties’ contract and its hiring of replacement workers, the Board found that the strike was converted into a lockout as of the week ending July 10, 2004. See Vrotney Unemployment Compensation Case, 400 Pa. 440, 163 A.2d 91 (1960) (setting forth the standard for determining when a work stoppage takes the form of a strike or lockout based on a “maintenance of the status quo” test). See also Schott Glass Technologies, Inc. v. Unemployment Compensation Board of Review, 832 A.2d 554 (Pa.Cmwlth.2003).

Because the Board made its own credibility determinations and properly weighed the evidence presented, I conclude that the Board’s finding that the work- stoppage was converted to a lockout as of the week ending July 10, 2004 is supported by substantial evidence in the record. Therefore, I would affirm the Board’s determination that Claimants are eligible for benefits, but I disagree with the Board that benefits should continue for the weeks ending beyond August 30, 2004. Claimants were offered a return to work under terms and conditions of the expired contract, but they refused to return because of questions or uncertainty surrounding the status of the replacement hirees and how they would be integrated into the workforce and questions regarding a return of Claimants’ health benefits to their prior level. I am not persuaded that such questions or uncertainty precluded Claimants from accepting the August 23, 2004 offer for them to return to work. Thus the Board’s order should be modified to limit Claimants’ eligibility to the weeks ending July 17, 2004 through August 30, 2004.