# Miceli v. Unemployment Compensation Board of Review

> Supreme Court of Pennsylvania · October 17, 1988 · 519 Pa. 515

URL: https://www.frixlaw.com/law-library/cases/9746731

## Case

- **Full name:** Frank D. MICELI, Charles Minnich and Leander Krist, Token Claimants, Appellants, v. UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, Commonwealth of Pennsylvania, Appellee, and Quaker Oats Company, Intervenor
- **Court:** Supreme Court of Pennsylvania
- **Decided:** October 17, 1988
- **Citations:** 519 Pa. 515; 549 A.2d 113; 1988 Pa. LEXIS 248
- **Precedential status:** Published
- **Opinion:** Concurrence by Nix
- **Judges:** Nix, Larsen, Flaherty, McDermott, Papadakos, Stout, Zappala
- **Cited by:** 28 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

*529 NIX, Chief Justice,
concurring.
Under section 402(d), the ineligibility for compensation due to unemployment is clearly established, see, 43 P.S. 802(d) (1964). The genius of the test established in Vrotney Unemployment Compensation Case (“Vrotney”), 400 Pa. 440 , 163 A.2d.91 (1960), was its simplicity in application. In any period of turmoil, particularly where the setting is a labor dispute between employees and employers, it is impossible during the heat of the moment to ascertain who is right and who is wrong, who was the provoker and who was the victim. Therefore, in Vrotney, the simple test articulated was to determine which side occasioned the work stoppage. If it was a lockout, the employer was properly assigned as the person responsible for the cessation of the operation. Conversely, if it was a strike, the Union was held responsible.
Admittedly there are many factors that may bear upon an employer’s decision to terminate the operations through a lockout. There are also weighty reasons that may force the Union to conclude that a strike is necessary. However, to incorporate these considerations in a determination under the Vrotney rule as it applies to unemployment compensation benefits destroys the utility of that vehicle as a means for providing the implementation of section 402(d). In this instance the employer unquestionably created the cessation of work by electing to cause a lockout. 1 The inquiry for *530 determination of benefits for employees should have stopped at that point. For this reason I can concur in the result reached today.
Nevertheless, I register a serious concern about the rationale applied by the majority, even though the ultimate result, I believe, is correct. The majority has taken the simple question of fact, i.e., whether there was a lockout or a strike, and transformed it into a mixed question of fact and law that can only further disrupt an area where disruption is at all costs to be avoided. The attempt to allow the employer, where there is a lockout, or the union, where there is a strike, to justify that lockout or strike under the terms of 402(d) is totally unwarranted. For the purposes of applying section 402(d), the question is not the legitimacy of the employer’s judgment in effecting a lockout, or the union’s justification in declaring a strike. These concerns can be properly addressed under grievance procedures and in the bargaining process. 2 The intent of Vrotney was to *531 extricate the determination of benefits from the heat of the labor controversy that provided the basis for the dispute. Today’s opinion inextricably ties an employee’s entitlement to benefits to the merits of the labor controversy.
Section 402(d) was designed to encourage both sides to continue the working relationship in the face of serious disagreements relating to the conditions of employment. The resolution of these disagreements ideally should come through the bargaining process without the disruption of a work stoppage. Attempting to deter the employer from instituting a lockout or the union from calling a strike, regardless of the differences that may exist between the parties, furthers the purpose of the Act. Rule 402(d) was designed to perpetuate the existing working conditions during the period of an impasse. That simple test was established to determine whether the status quo was broken and by whom. Today we undermine that simple approach, and in my judgment, detract from Vrotney a significant part of its efficacy.
. The fundamental error in the Opinion of the Court is its failure to distinguish between instances where the issue is whether the work stoppage resulted from a strike or a lockout, see, e.g., Local 730 v. Unemployment Compensation Board of Review, 505 Pa. 480 , 480 A.2d 1000 (1984); Fairview School District v. Unemployment Compensation Board of Review, 499 Pa. 539 , 454 A.2d 517 (1982); Union City School District v. Unemployment Compensation Board of Review, 499 Pa. 548 , 454 A.2d 522 (1982), and this case where it is conceded that the cause of the work stoppage was a lockout. In those cases where the issue centers upon the nature of the work stoppage, it is legitimate to inquire into the motives of the respective sides in determining the character of the work stoppage. In this case, the Opinion seeks to establish the dangerous precedent of introducing into the Vrotney formula the justification, or lack of it, for a lockout and suggests its relevance in the ultimate determination as to the entitlement of the employees to unemployment compensation benefits. Once it is deter *530 mined that the resulting work stoppage was a result of a strike or a lockout, any further inquiry as to why the particular side acted in such a manner is irrelevant.
. In Local 730 v. Unemployment Compensation Board of Review, 505 Pa. 480 , 480 A.2d 1000 (1984), the employer asserted its good faith to justify its unilateral change in wages during a collective bargaining impasse. In rejecting the relevancy of that argument, we stated the following:
The effect of the latter argument is to interject a good faith element in the Vrotney formula. The initial acceptance of the Vrotney standard was based on its easy application on the administrative level and at the same time it served the basic policy concerns involved. Vrotney was designed to encourage the continuation of the work relationship under terms previously agreed to by the parties during that difficult period between the expiration of the old agreement and before the new terms of employment had been agreed upon---- Moreover, the administrative units involved in the compensation eligibility decision would have little difficulty in resolving the simple factual question of who first departed from the terms of the expired agreement____ Once we complicate that decision with requirements of ascertaining the good faith or the justification of a party altering the former terms, we create a standard infinitely more difficult to administer, without a corresponding benefit being derived for such a modification.
505 Pa. at 486-87 , 480 A.2d at 1003-04 (Citations omitted).
That teaching applies where either party seeks to justify its action in bringing about a work stoppage.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9746731. Public record. Not legal advice.