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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Philadelphia Mixing Solutions, Petitioner v. Unemployment Compensation Board of Review, Respondent : : : : : : : :

No. 394 C.D. 2009 Argued: November 10, 2009

BEFORE:

HONORABLE ROBERT SIMPSON, Judge HONORABLE JOHNNY J. BUTLER, Judge HONORABLE KEITH B. QUIGLEY, Senior Judge

OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE BUTLER FILED: December 16, 2009

Philadelphia Mixing Solutions (Employer) petitions for review of the February 11, 2009 order of the Unemployment Compensation Board of Review (UCBR) reversing the decision of the Referee who denied benefits to Randall S. Peters (Claimant)1 due to a work stoppage. The only issue in this case is whether the UCBR erred in reversing the Referee by determining that Employer disrupted the status quo, thereby making the work stoppage a lockout instead of a strike. For the reasons that follow, we reverse the UCBR, thereby reinstating the Referee's decision to deny benefits.
Randall S. Peters is the representative Claimant in the present case; however, there are fourteen claimants to whom this determination will apply. The other claimants include: Dean E. Achey, Steven L. Beach, Robert L. Copenhaver, Sr., Ronald D. Crater, Robert H. Fenicle, Kenneth R. George, Carl R. Hott, Neil R. Neidig, Thomas Poleshuk, Kenneth R. Seaman, Charles J. Ward, Brian K. Warlow, and Bradley S. Wieland.
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Claimant was employed by Employer for approximately 30 years until November 9, 2007. Claimant worked under a collective bargaining agreement (CBA) between Employer and Claimant's union, the International Association of Machinists and Aerospace Workers Local Lodge 2367, District Lodge 98 (Union). The CBA expired on November 4, 2007. Prior to the expiration of the CBA, the parties attempted to negotiate a new contract, but were unable to come to a resolution. Both parties agreed that work would continue under the terms and conditions of the old CBA. For approximately four to five years prior to November 2, 2007, employees were able to access the plant using electronic keycards. Starting

November 2, 2007, however, Employer deactivated the keycards and required employees to knock on the door for access. Employees were informed of this change at a meeting conducted by Justin Hocker, Employer's Vice President of Operations. Between November 5 and November 12, 2007, employees accessed the plant by knocking on the door, which would then be opened by Employer's representatives. However, on November 12, 2007, Claimant knocked on the plant door around 6:45 a.m. and was unable to enter the plant because no member of management had yet arrived. Management allegedly arrived at the plant closer to 7:00 a.m., but Claimant made no further attempt on November 12, 2007, or any day thereafter, to enter the plant. Also, prior to the expiration of the CBA, employees were allowed to leave personal tools used for their jobs at their workspaces. Beginning November 6, 2007, however, employees were asked to remove their personal tools from the premises or to a secure location at the end of each workday. Some of the tools and toolboxes weighed close to 100-200 pounds. After the policy was put in place, some

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of the employees who removed their tools from the premises had to make trips to their cars in order to retrieve tools they forgot to bring with them at the beginning of their shift. In addition, after the CBA expired, management personnel performed some of the assembly work usually performed by bargaining unit personnel. Employer claimed that management personnel often helped out during peak production times and that this was the reason for using management personnel. Claimant asserted that management personnel were only used to train or assist bargaining unit personnel, and never independently worked on the production lines, as they were doing after the expiration of the CBA. Finally, Employer changed the availability of overtime hours. Prior to the expiration of the CBA, Claimant alleged that employees were always allowed to work overtime two hours prior to the start of their shift. Employer changed the availability of overtime to include hours after the end of the employees' normal shift. As a result of the changes made by Employer, the union filed a charge of unfair labor practices with the National Labor Relations Board (NLRB) and, on or about November 11, 2007, voted in favor of a strike authorization.2 Although some picketing did occur, the Union considered this informational picketing and not strike activity. Claimant filed for unemployment compensation (UC) benefits shortly after November 12, 2007, and was denied benefits by the local UC Service Center, which determined that the labor dispute was a strike and not a lockout. Claimant appealed, and a hearing was held on May 28, 2008 before a UC Referee. On June 5, 2008, the Referee issued a written determination affirming the Service Center's
A vote for strike authorization permits the Union's bargaining representative to call a strike if he/she determines that such action is necessary.
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decision. Claimant filed a timely appeal to the UCBR, which reversed the Referee's decision on February 11, 2009, holding that there was a physical and constructive lockout, and that Employer was the first to change the status quo. Employer appealed to this Court.3 Employer argues that the UCBR erred in determining that it physically and constructively locked out Claimant by disabling the keycard readers and by failing to specifically offer the same terms and conditions of the expired agreement. Employer claims that employees were not physically locked out of the building because they were able to access the building as they had prior to having keycards, being let into the building by Employer's representatives. In addition, Employer contends that employees were not constructively locked out because the changes it made, i.e, taking away keycard access, asking employees to remove tools or place them in a secure area at the end of each shift, changing when overtime would be available, and assigning work normally done by bargaining unit employees to management employees, were not specifically covered in the CBA. Finally,

Employer argues that Claimant was the first to disrupt the status quo by not reporting to work on November 12, 2007. Section 402(d) of the Unemployment Compensation Law (Law),4 states, in relevant part, "[a]n employe shall be ineligible for compensation for any week . . . . [i]n which his unemployment is due to a stoppage of work, which exists because of a labor dispute (other than a lock-out) at the factory, establishment or other premises at
"Our scope of review in unemployment compensation cases where evidence has been presented by both parties is limited to a determination of whether constitutional rights were violated, errors of law committed, or findings of fact are not supported by substantial evidence." Schulmerich Carillons, Inc. v. Unemployment Comp. Bd. of Review, 623 A.2d 921, 923 n.2 (Pa. Cmwlth. 1993). 4 Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.

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