Sprague & Henwood, Inc. v. Unemployment Compensation Board of Review

Dissenting Opinion by

Ervin, P. J.:

I dissent. Claimants here were clearly not eligible for compensation during the period for which they were out on strike. Claimants were members of the bargaining unit, though not members of the union. The strike or work stoppage began April 8, 1963 because no collective bargaining contract had been agreed upon. Some sixteen claimants here seek compensation from the date (June 20, 1963) they were notified by letter of the employer as permanently replaced, to the end of the strike on November 26, 1963. During the strike some 130 employes reported for work and production at the plant continued throughout the strike.

The issue to be decided in this case is whether or not employes who had been permanently replaced dur*119ing a strike, although production at the plant continued, are eligible to receive benefits from the time of replacement while the strike remains in progress.

Section 402(d) of the Act, 43 PS §802(d), provides: “An employe 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 lockout) 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. ...” ,

Claimants admit they are disqualified from the time of the commencement of the strike, until replacement, because their unemployment was due to a stoppage of work which existed because of a labor dispute under §402(d) of the Act, supra. A disqualifying stoppage of work may exist under §402 (d) even though the curtailment of production may be partial only: Rusynko Unemployment Compensation Case, 191 Pa. Superior Ct. 434, 438, 156 A. 2d 576. Of course, where the strike involves all employes at the plant and causes a shutdown, and the work stoppage due to a labor dispute is not a lockout, claimants are disqualified under §402(d) : Oluschak Unemployment Compensation Case, 192 Pa. Superior Ct. 255, 257, 159 A. 2d 750 (1960), citing Gray Unemployment Compensation Case, 187 Pa. Superior Ct. 425, 144 A. 2d 856 (1958).

The fundamental purpose of the Act is to give compensation to workers unemployed through no fault of their own: Harris Unemployment Compensation Case, 185 Pa. Superior Ct. 235, 239, 138 A. 2d 207; Here the work stoppage due to a labor dispute, i.e., the strike, was the underlying cause of claimant’s unemployment, during the entire period of the strike, and claimant’s *120status as a striker was not altered by the letter of replacement. The replacement was made necessary by the strike, and the strike caused the unemployment. The purpose of the disqualifying clause in 402(d) is to prevent employes from receiving compensation during the period of the strike, and the disqualification is not removed if the employe obtains work elsewhere: Oluschak Unemployment Compensation Case, supra, citing Westinghouse Electric Corporation v. Board of Review, 25 N.J. 221, 135 A. 2d 489 (1957).

Claimants argue that the employer-employe relationship was terminated by the replacement during the strike; that the replacement thereafter caused the unemployment, and claimants are entitled to benefits. Whether the employer-employe relationship was terminated by the replacement is doubtful, in view of the fact that the contract negotiated as a result of the strike gave claimants the right to return to their jobs within time limits. Even assuming, however, that the replacement did terminate the employer-employe relationship (Cf. Oluschak Unemployment Compensation Case, supra) the original and proximate cause of claimants’ unemployment was the strike or work stoppage, and, under §402(d) this ineligibility remained in force until the strike ended. The holding of the majority, that the permanent replacement caused the unemployment thereafter, during the strike, is not realistic nor in accordance with the purposes of the Act.

Section 402(b) of the Act provides: “An employe shall be ineligible for compensation for any week— . . . (b)(1) In which his unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature. . . . And provided further, Thai the provisions of this subsection shall not apply in the event of a stoppage of work which exists because of a labor dispute within the meaning of subsection (d).”

*121The term “stoppage of work which exists because of a labor dispute/’ as used in §402(b), supra, has been interpreted to refer to plant operations rather than to cessation of the employe’s labor: Harris Unemployment Compensation Case, supra; Mattson Unemployment Compensation Case, 194 Pa. Superior Ct. 307, 167 A. 2d 321 (1961). Under this interpretation, there was no cessation of plant operations in the instant case; the exception in 402(b) (1) does not apply, and claimants are ineligible as voluntary quits (Cf. Harris Unemployment Compensation Case, supra, and Mattson Unemployment Compensation Case, supra) since they left the plant when work was available and production continued. Having left their employment April 8, 1963, claimants remained unemployed during the strike, and the letter of permanent replacement would not alter their ineligibility. As Judge Watkins stated in Matt-son Unemployment Compensation Case, supra, “If, however, stoppage of work refers to the employee’s labor, then, whether he was replaced or not is immaterial as his stoppage of work continued as a result of a labor dispute for the entire duration of the strike.”

There is considerable dispute as to whether “stoppage of work” means cessation of plant operations, under §402(b), or cessation of the employe’s labor only, and the view has been expressed that this term should be interpreted similarly in both 402(b) and 402(d) : Mattson Unemployment Compensation Case, supra, discussing the effect of Melchick Unemployment Compensation Case, 396 Pa. 560, 154 A. 2d 875 (1959). The Melchick case, supra, does not control here, for the Supreme Court there stated: “Since both 402(b) and (d) apply to a work stoppage during a labor dispute, neither subsection applies here [where the claim for benefits was after the strike ended]. . . .”

Under any analysis, therefore, claimants are ineligible here, either as voluntary quits under §402(b), dur*122iiig tbe entire period of the strike, or under §402(d) due to a “stoppage of work, which exists because of a labor dispute ... at the factory” where claimants were last employed, also during the entire period of the strike. Claimants’ unemployment was caused by the strike, and ineligibility here is clear, under §402(d), regardless of any controversy over the interpretation of the exclusionary clause in 402(b), supra.

The record here shows that claimant continued to picket the employer’s plant after he had been permanently replaced and that he did more than his share of picketing. Although the board made no finding on this point, it appears that claimant(s) was unavailable for work during the strike and therefore ineligible for benefits under §401 (d) of the Unemployment Compensation Law, 43 PS §801 (d).

I would reverse the decision of the board.