# Bruce Plastics, Inc. v. Unemployment Compensation Board of Review > Commonwealth Court of Pennsylvania · February 10, 1993 · 153 Pa. Commw. 439 URL: https://www.frixlaw.com/law-library/cases/9634695 ## Case - **Full name:** BRUCE PLASTICS, INC., Petitioner, v. UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, Respondent. (Two Cases) - **Court:** Commonwealth Court of Pennsylvania - **Decided:** February 10, 1993 - **Citations:** 153 Pa. Commw. 439; 621 A.2d 1130; 1993 Pa. Commw. LEXIS 82 - **Precedential status:** Published - **Opinion:** Concurrence by Friedman - **Judges:** Pellegrini, Friedman, Narick - **Cited by:** 2 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9634695 ## Opinion text *444 FRIEDMAN, Judge, concurring. I concur in the result. However, in my view, the majority’s analysis fails to identify precisely the operative facts and law upon which the resolution of this case should turn. 1 Employees who are out of work due to a work stoppage are entitled to unemployment benefits only if the work stoppage is due to a lockout. 2 Philco Corp. v. Unemployment Compensation Board of Review, 430 Pa. 101, 104 , 242 A.2d 454, 455 (1968). The initial question in determining whether a work stoppage is a strike, attributable to the employees, or a lockout, attributable to the employer, is which party first breached the status quo. Here that party was clearly the employees. The next inquiry where the work stoppage, as here, takes the form of a strike, is whether the employees have made an initial peace move by offering to return to work on the preexisting terms. Where no such offer was made, the futility doctrine may be invoked if it appears that such an offer would definitely not have been accepted by the management. Philco. Because the proper inquiry in determining the cause of unemployment must be confined to the immediate cause of unemployment, Acme Corrugated Box Company, Inc. v. Unemployment Compensation Board of Review, 131 Pa.Commonwealth Ct. 251, 570 A.2d 100 (1990) (en banc) (Acme II), the critical question in this case where the employees initiated the work stoppage is whether any later action by either party changed the immediate cause of unemployment so as to make invocation of the futility doctrine proper. *445 Our courts have been loathe to apply the futility doctrine unless it is clear that the employer would not accept an unconditional offer to return to work. Philco; Acme II; T.B. Woods Sons Company v. Unemployment Compensation Board of Review, 150 Pa.Commonwealth Ct. 217, 615 A.2d 883 (1992). The futility doctrine has generally been applied in cases where the work stoppage is due to an action of the employer and is, therefore, tantamount to a lockout. In Irvin Unemployment Compensation Case, 198 Pa.Superior Ct. 308, 181 A.2d 854 (1962), the employees had returned to work under an old contract and were prepared to make a extension of that work situation when the employer flatly stated that there would be no further extension of the old collective bargaining agreement and that work could continue only on his terms. In Unemployment Compensation Board of Review v. Borger Steel Company, 30 Pa.Commonwealth Ct. 75, 372 A.2d 969 (1977), not only did the employer tell the union that employees should not report to work if the proposed contract was not accepted, but also the doors of the plant were locked when the employees did report to work. Irvin and Borger presented clear evidence that the employer would not accept an unconditional offer to work under the preexisting status quo, which this case does not. The board erred in applying the futility doctrine in a case where the initial work stoppage was due to actions of the employees, where there had been no unconditional offer to return to work and where it was not absolutely clear that an offer, if made, would not be accepted by the management. 3 In *446 this case, the employees failed to take the action, an unconditional offer to return to work under the status quo, which would have relieved them of the responsibility for the work stoppage. The employer’s hiring of permanent replacement workers is not sufficient, in and of itself, to show that it would have been futile for the employees to make such an offer. Accordingly, I concur in the result. . The question of whether a work stoppage is a strike or a lockout is a mixed question of fact and law. Philco Corp. v. Unemployment Compensation Board of Review, 430 Pa. 101 , 242 A.2d 454 (1968). . This case differs factually from many of the cases cited because due to the change of employers there was no expiration of an existing bargaining agreement. Rather, the employees were negotiating a new bargaining agreement. This distinction does not change our analysis because employees who are bargaining for a new contract are not guilty of willful misconduct when they strike and are therefore eligible for unemployment benefits if the employment relationship is later severed by the employer, Penflex, Inc. v. Bryson, 506 Pa. 274 , 485 A.2d 359 (1984), or if the work stoppage is converted to a lockout. See also paragraph 6 of the Recognition Agreement between BPI and the United Electrical, Radio & Machine Workers of America (R.R. at 149a). . I disagree with the majority’s conclusion that the futility doctrine is inapplicable because the replacement workers would have been laid off if an unconditional offer had been made. There is no evidence, in my view, to support that finding. Although I acknowledge that BPI laid off replacement workers when the employees made an unconditional offer on July 27, 1990, that event was too remote in time from the hiring of the permanent replacement workers to support a finding that an unconditional offer by employees would have been accepted by BPI. See, e.g., Topelski v. Universal South Side Autos, Inc., 407 Pa. 339, 347-48 , 180 A.2d 414, 418 (1962). Furthermore, I also recognize that the NLRB issued a complaint against BPI which may have influenced BPI’s July actions. Contrary to the majority's opinion, I believe that the absence of evidence does not prove the fact. *446 However, I agree with the majority’s decision for other reasons. Because the employees failed to make an unconditional offer to return to work, their work stoppage was the cause of their unemployment. They have unavailed themselves of the futility doctrine. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9634695. Public record. Not legal advice.