# T.B. Wood's Sons Co. v. Unemployment Compensation Board of Review

> Commonwealth Court of Pennsylvania · August 26, 1992 · 150 Pa. Commw. 217

URL: https://www.frixlaw.com/law-library/cases/9703672

## Case

- **Full name:** T.B. WOOD’S SONS COMPANY, Petitioner, v. UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, Respondent
- **Court:** Commonwealth Court of Pennsylvania
- **Decided:** August 26, 1992
- **Citations:** 150 Pa. Commw. 217; 615 A.2d 883; 1992 Pa. Commw. LEXIS 569
- **Precedential status:** Published
- **Opinion:** Concurrence by Narick
- **Judges:** Palladino, Friedman, Narick
- **Cited by:** 6 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

NARICK, Senior Judge,
concurring.
I join in the opinion of the majority except in its failure to find that the Board’s decision is not supported by substantial evidence that the 322 unit employees represented by the Union/Claimant were effectively discharged as of the week ending June 16, 1990, because they had been either replaced or that the work as of that week was contracted out. The Board acknowledges that Claimant ceased work as a result of a work stoppage. However, it accepted the testimony of the Claimant that as of the week ending June 16, 1990 work was no longer available since the Claimants were replaced or work was contracted out.
For the reasons set forth below, the Board’s findings are contrary to the credible and competent testimony and the record taken as a whole and therefore cannot be upheld. The record clearly established as found by the referee that the work stoppage at its inception on April 30, 1990, was a strike and continued to be a strike as relevant herein at least through June 16, 1990. It should be noted that following the expiration of the contract and the start of the work stoppage, no changes were made in the contract or invoked by the *226 Employer, and thus, the status quo was maintained during the appeal period. As recently emphasized in Local 730, United Association of Journeymen and Apprentices of the Plumbing and Pipe-Fitting Industry v. Unemployment Compensation Board of Review, 505 Pa. 480 , 480 A.2d 1000 (1984), the sole test for determining whether a work stoppage is a lockout or a strike for purposes of entitlement of unemployment compensation benefits is which side, union or management, first refused to continue operations under the status quo. The status quo continued here and was not transferred into a lockout when the Employer began hiring replacement employees. See Acme Corrugated Box Co. v. Unemployment Compensation Board of Review, 131 Pa.Commonwealth Ct. 244, 570 A.2d 96 (1989).
I note, as did the Board, that the Claimant appealed the referee’s denial of benefits for only “the week ending June 16, 1990.” (Emphasis added.) The Board specifically stated “... the Board has made no findings and will draw no conclusions with regard to the week following the week ending June 16, 1990.”
We start with the well-settled law as stated by our Supreme Court in Treon v. Unemployment Compensation Board of Review, 499 Pa. 455, 460 , 453 A.2d 960, 962 (1982):
Although the weight to be given the evidence and the credibility to be afforded the witnesses are within the province of the Board as finder of fact, ... such a body is not free to ignore the overwhelming evidence in favor of a contrary result not supported by the evidence.
(citing Borello v. Unemployment Compensation Board of Review, 490 Pa. 607, 618-19 , 417 A.2d 205, 211 (1980) (emphasis deleted)). Similarly, we are of the opinion that the Board may not ignore the referee’s findings when they are supported by overwhelming evidence. To the same effect, our Court stated in Hercules v. Unemployment Compensation Board of Review, 146 Pa.Commonwealth Ct. 77, 85, 604 A.2d 1159, 1162-1163 (1992):
Where there exists overwhelming uncontroverted evidence upon which the referee relies to make findings, and *227 where the Board takes no additional evidence, the Board may not disregard (or make findings contrary to) such findings of the referee unless it provides reasons for doing so, Treon, or those reasons are clear from the record. Peak v. Unemployment Compensation Board of Review, 509 Pa. 267 , 501 A.2d 1383 (1985); see also Office of Attorney General v. Unemployment Compensation Board of Review, 111 Pa.Commonwealth Ct. 187, 533 A.2d 1087 (1987). (Emphasis added.)
We are presented with findings made by the referee which the Board failed to adopt. The Board heard no additional testimony before it rendered its decision. It had before it precisely the same record which was before the referee and now before us. Based on that record, the referee concluded that during the period from April 30,1990 to June 16,1990 the Union employees were and remained as striking employees. Further, the fact that some permanent replacements may have been hired before June 16, 1990, the referee found that the cause of the unemployment was the strike which had not been converted into a lockout during the relevant period.
The Board adopted the referee’s Findings of Fact 2, 3, 4 and 5 that the Claimant was a representative of the employees represented by the Union; that the collective bargaining agreement between the Union and the Employer had an expiration date of April 30, 1990; the negotiations for a new collective bargaining agreement were not successful before the expiration date, thus resulting in a work stoppage on April 30, 1990; and that on or about June 5 to June 7 that the Employer began to hire permanent replacement employees and contracted out some of the unit work. However, the Board did not adopt or address the referee’s Finding of Fact No. 6 that the work stoppage at its inception was a “strike” and that the employees withheld services while work was available under the same terms and conditions of the expired collective bargaining agreement.
Also, the Board did not adopt the referee’s Findings Nos. 11,12, 14,15 and 16 in substance as follows: that the Union on July 20, 1990, communicated with the Employer for the first *228 time since the April 30 work stoppage that unit employees were prepared to return to work under the same terms of the expired agreement and that bargaining continue in good faith; that the Employer responded on July 24, 1990 that some permanent replacements had been hired but the jobs were available for some of the striking employees; that the Claimant did not accept the Employer’s offer and did not return to work on or as of August 31,1990, on the same terms under the existing contract; that as of October 10, 1990, 193 replacements of the unit work force of 322 prior to the work stoppage were hired and that a number of members of the Claimant’s unit employees did return to work during the work stoppage under the same terms and conditions of the expired contract.
The Board in its Finding No. 9 found that the Employer on or about June 5 to June 7, 1990 began to hire permanent replacements to replace the employees that engaged in the work stoppage on April 30, 1990. However, in its Findings No. 9, 15 and 16, it leaped incredibly to the conclusion that the Employer hired 193 replacements and thereby effectively discharged the 322 unit employees as of the week of June 16, 1991 because work was no longer available since they were replaced or the work was contracted out. These incredible findings fly in the face of the findings of the referee that the Employer hired 193 replacements out of a work force of 322 as of October 19,1990. Significantly, the Claimant acknowledged in its post-hearing brief to the referee submitted three days after the hearing of October 10, 1990 that the Employer had begun to hire replacements on June 7, 1990 and “the company at the present time employs approximately 170 such employees who have permanently replaced the Claimants.” Further, in the Union’s brief after stating Claimant made an offer to return to work on July 20, 1990, the Employer advised the Union on July 24 that it hired 150 permanent replacement and that there was work available for if not all a number of the striking employees.
There is not a scintilla of competent evidence either in the record or the parties’ briefs that “the Union employees were effectively discharged as of the week ending June 16, 1990 *229 because work was no longer available.” Based thereon the Board asserted “once work was no longer available to the Claimant, the Board concludes that the immediate cause for his unemployment was the lack of work.”
As stated by the court in Treon , “if particular findings are inconsistent, incredible or unsupported by the evidence, then the Board must so indicate. The Board may not, however, simply disregard findings made by the referee which are based upon consistent and uncontradicted testimony without stating its reasons for doing so.” Id. at 461 , 453 A.2d at 962 . In the case before us, the Board, although disregarding the credible findings of the referee, did not provide any reasons for doing so, as Treon requires, nor is its reasons clear from the record. Peak .
Accordingly, I would find that the Board was in error in failing to affirm the referee’s Findings of Fact and conclusion that the Claimant and the unit' employees remained striking employees during the appeal period, April 30 to June 16,1990, and that the strike was not converted to a lockout when the Employer began hiring replacements shortly before June 16, 1990.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9703672. Public record. Not legal advice.