BERMUDEZ et al. v. UN. COMP. BD. of REV

Unemployment compensation — Work stoppage — Lockout — Continued work under expired agreement — Power of Unemployment Compensation Board of Review.

1. In an unemployment compensation case the Unemployment Compensation Board of Review, not a referee, is the ultimate fact-finder with power to affirm, modify or reverse a determination of the referee. [604]

2. An employe is not entitled to unemployment compensation benefits when his unemployment is due to a work stoppage resulting from a labor dispute, when such work stoppage was initiated by the refusal of employes to work under the terms of an expired labor agreement during negotiations for a new contract. [604-5]

OPINION BY JUDGE DOYLE, March 16, 1983:

This is an appeal by Angleo Bermudez (Claimant) from an order of the Unemployment Compensation Board of Review (Board) which reversed the order of a referee and denied unemployment benefits due to Claimant's labor-dispute related work stoppage. For the reasons which follow, we affirm the decision and order of the Board.

Claimant's appeal has been selected as the lead case for a group of similarly situated claimants who were employed by Master Chef Food, Inc. (Employer). Claimant is a member of Teamsters, Local 115 (Union). A collective bargaining agreement between the Union and the Employer expired on December 19, 1979. Following that date, Claimant continued to work under the terms of the expired agreement while negotiations toward a new agreement were undertaken. On January 3, 1980, Claimant went on strike when a memorandum agreement which had been produced by the parties' negotiators was rejected by the Union. Thereafter, the bargaining agents produced a second tentative agreement, which was rejected by the Employer on January 11, 19,80. Claimant continued the labor action because work was available only under the terms of the expired agreement rather than under the terms of the latest tentative agreement.

Section 402(d) of the Unemployment Compensation Law disqualifies a claimant if "his unemployment is due to a stoppage of work, which exists because a labor dispute (other than a lock-out) at the factory, establishment or premises at which he is or was last employed." Conflicting testimony was received by the referee who found that the work stoppage beginning on January 11th was the result of a lockout by Employer. Following oral argument and a review of the record, however, the Board reversed that finding, concluding instead that the work stoppage was due to Claimant's refusal to work under the terms and conditions of the expired agreement. Claimant argues that the referee's finding was supported by substantial evidence and, therefore, should be controlling. In an unemployment compensation case, however, it is the Board which is the ultimate finder of fact. The Board has the power to affirm, modify or reverse the determination of the referee. Unemployment Compensation Board of Review v. Wright, 21 Pa. Commw. 637, 347 A.2d 328 (1975).

To avoid responsibility for the work stoppage under the Unemployment Compensation Law, employees must offer to continue to work under the terms of the expired agreement for a reasonable time, and the employer, to avoid responsibility, must permit work to continue under the terms of said agreement for a reasonable time, pending further negotiations. Vrotney Unemployment Compensation Case, 400 Pa. 440, 163 A.2d 91 (1960). Here, the employees refused to work under the terms of the expired agreement and initiated the work stoppage.

NOW, March 16, 1983, the order of the Unemployment Compensation Board of Review, number B-191104, dated January 6, 1981 is hereby affirmed.