Myers v. Unemployment Compensation Board of Review

Opinion by Judge Wilkinson, The above two cases are essentially identical on the facts, were argued together, and can be decided together. Appellant-claimants were members of Monongahela Valley Typographical Union Local 504, employed by employer, The Valley Independent, a division of Thomson Newspaper Publishing, Inc., in Monessen, Pennsylvania. This union was a member of the Mon Valley Trades Council. Another union which represented other workers at employer’s plant went on strike on August 28, 1970. Appellant-claimants crossed the picket line established by the other striking union without incident and continued to work. On September 4,1970, the Mon Valley Trades Council established a second picket line some distance from the one established by the striking union. There was evidence offered that threats were made against appel [643] 1 ant-claimants and their families if the appellant-claimants crossed the second picket line which was established by the Mon Valley Trades Council of which appellant-claimants’ union was a member. The testimony was to the effect that the alleged threats were from the Mon Valley Trades Council. Appellant-claimants did not cross the picket line established by the Mon Valley Trades Council in sympathy with the striking union. After application was made for unemployment compensation, the Bureau of Employment Security rendered a decision in favor of the appellant-claimants, awarding compensation beginning September 11, 1970. This Bureau decision was appealed by the employer. On appeal, the Referee reversed the Bureau on February 16, 1971. Appellant-claimants appealed to the Board which remanded the cases to the Referee for further testimony. After reviewing the record of both hearings, the Board adopted the findings of the Referee and affirmed his decision determining that appellant-claimants were ineligible. Two questions are raised by this appeal, one x-elatively simple under the decided cases and one that is not simple and is novel indeed. The first is as to the appellant-claimants’ eligibility for unemployment compensation. The Referee and the Board found that the threats that induced appellant-claimants to refuse to cross the picket line on September 4, 1970, were threats from its own union against crossing its own union’s picket line. Finding of Fact No. 10 states: “Claimant and Members of the Monon gabela Valley Typographical Union Local 504, refused to cross the picket line on September 4, 1970, in deference to the AFL-CIO mandate against crossing a fellow member union picket line.” Since the findings of the Board are binding on this Court, if supported by evidence which is the instance here, it is quite clear that [644] the decision of the Board must be affirmed on the question of eligibility. Cleaver v. Unemployment Compensation Board of Review, 5 Pa. Commonwealth Ct. 255, 290 A. 2d 279 (1972). Philadelphia Coke Division, Eastern Asosciated Coal Corporation v. Unemployment Compensation Board of Review, 6 Pa. Commonwealth Ct. 37, 293 A. 2d 129 (1972). The other question which is not as clear and is somewhat unusual is whether appellant-claimants are entitled to unemployment benefits for the period September 11, 1970, when the Bureau determined them to be eligible, until February 16, 1971, when the Referee reversed the Bureau and determined them to be ineligible. Under the Pennsylvania Unemployment Compensation Law then in effect, benefits were not paid because the employer had appealed. Act of December 5, 1936, P. L. 2897 (1937) §501, as amended. Following the Referee’s decision on February 16, 1971, of ineligibility in this case, the Supreme Court of the United States, on April 26, 1971, in the case of California Department of Human Resources Development v. Java, 402 U.S. 121, 91 S. Ct. 1347, 28 L. Ed. 2d 666 (1971), held a similar provision of the California statute suspending unemployment compensation payments when an employer appeals to be inconsistent with Section 303(a) (1) of the Social Security Act, 49 Stat. 626, as amended, 42 U.S.C. 503(a)(1) and enjoined the procedure. It is our opinion that the Java case, although the opinion was delivered after the Referee determined ineligibility, nevertheless applies. It is not a question of retroactivity. It is a simple question of statutory construction which must be considered to have been the applicable law since the passage of that provision of the Social Security Act: “Unless vested rights are affected, a court’s interpretation of a statute is considered to have been the law from its enactment date, despite contrary [645] intervening holdings.” Kuchinic v. McCrory, 422 Pa. 620, 625, 222 A. 2d 897, 900 (1966). Another theory, discussed with approval by Justice Roberts in Kuchinic, which would award appellant-claimants compensation for this period, is in Justice Robert’s words: “. . . a party is given the benefit of a change in the law in order to prevent an injustice, especially when, as here, the other party could not have changed his position in reliance on the initial decision.” Kuchinic v. McCrory, 422 Pa. at 625, 222 A. 2d at 900. On this theory, claimant-appellants wou 1 d be given the benefit of the amendment to the Pennsylvania Unemployment Compensation Act which took place on September 27, 1971, making them eligible for payments during this period. Act of September 27, 1971, P. L. 460, §19.1, 43 P.S. 821(e). Accordingly, we enter the following Order The decision of the Unemployment Compensation Board of Review declaring appellant-claimants ineligible for benefits from February 16, 1971, is affirmed. The decision determining appellant-claimants to be ineligible for payments during the period September 11, 1970, until February 16, 1971, is reversed and the appellant-claimants awarded benefits for this period.