M.A. Bruder & Sons, Inc. v. Unemployment Compensation Board of Review

603 A.2d 271, 145 Pa. Commw. 329, 1992 Pa. Commw. LEXIS 114
CourtCommonwealth Court of Pennsylvania
DecidedJanuary 31, 1992
DocketNo. 185 C.D. 1991
StatusPublished
Cited by6 cases

This text of 603 A.2d 271 (M.A. Bruder & Sons, Inc. v. Unemployment Compensation Board of Review) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
M.A. Bruder & Sons, Inc. v. Unemployment Compensation Board of Review, 603 A.2d 271, 145 Pa. Commw. 329, 1992 Pa. Commw. LEXIS 114 (Pa. Ct. App. 1992).

Opinion

LORD, Senior Judge.

M.A. Bruder & Sons, Inc. (Bruder) appeals from a decision of the Unemployment Compensation Board which reversed a decision of a referee who had held that nine claimants were not entitled to benefits. The Board held those claimants were eligible for unemployment benefits.1

Both parties agree that the Board’s reversal was because the referee believed the employer’s testimony and the board [332]*332believed the claimants’ testimony.2

The facts are as follows. Bruder & Sons, Inc. is a corporation engaged in the manufacture, sale, and distribution of paint products. It employs drivers from Teamster’s Local 470 and warehousemen from Teamster’s Local 169.

On July 14, 1989, in anticipation of a strike by members of the Teamsters Local 169 warehousemen, the Teamsters Local 470 drivers were instructed to secure two trucks inside the Bruder building and to take the remaining trucks to a secure lot approximately ten miles away and to return to the plant by cab. The drivers secured the trucks as directed. The drivers were also told to take Monday, July 16, 1989, off.

What further instructions were given is in dispute. Bruder contended that, in response to their questions about what would happen if the Local 169 warehouseman did go out on strike, the claimants were told that if they, as Local 470 members, “chose” to honor Local 169’s picket line, then they would be called when the strike was over. The claimants contended however, that they were notified both orally and by posted notice that if Teamsters Local 169 went out on strike they would be called when they were to come, back to work. Bruder further contended that when some of the claimants came in to pick up checks, they were told that work was available if they chose to cross the picket line. The claimants denied this.

On July 16, 1989, Teamsters Local 169 went on strike. No member of Teamsters Local 470 came to work. Local 169's strike ended September 5, 1989 and the members of Local 470 then returned to work.

The crucial issue in the case was whether the drivers of Local 470 were voluntarily not at work because they were [333]*333supporting the Local 169 warehousemen’s strike or whether they were not at work because they were not called back to work by the company and therefore locked out. The central issue for factfinding body was therefore: what were the employees told?

In each of his decisions, the referee found:

7. The claimant did not return to work after the following Monday, nor did he report off as he elected to honor a non-violent picket line.

In discussing this decision, the referee found the claimant was made aware that work was available. (Referee’s decision, February 9, 1990).

On appeal from the referee’s decision, the Board in contrast found:

8. Finally, the claimant’s supervisor told the claimant that if local 169 did initiate a work stoppage he was not to report to work and he would be called when work was available.

In its discussion, the Board stated:

Accepting the testimony of the claimant and the claimant’s witnesses as credible, the Board finds that because Local 169 initiated a work stoppage, the claimant was told not to report to work. Further, the Board accepts as credible the claimant’s testimony that he was informed that he would be called by the employer when work became available and that on or about September 5, 1989, the claimant was called and informed that work was available.

(Board decision, October 11, 1990).

Based on these findings, the Board reversed the referee and granted benefits.

We are faced at the outset with a determination of our scope of review and begin with Treon v. Unemployment Compensation Board of Review, 499 Pa. 455, 453 A.2d 960 (1982), in which the Supreme Court held that the Board may not arbitrarily and capriciously disregard uncontradicted testimony of claimant who had been found credi[334]*334ble by a referee. It must indicate its reasons for failing to adopt findings made by the referee.

Treon, however, is not entirely apposite to this case, for here the evidence was contradictory and supported both sides of the issues raised.

Following Treon, this Court had occasion to decide Spencer v. Unemployment Compensation Board of Review, 501 A.2d 1159 (Pa.Cmwlth.1985), in which we stated:

We hold, therefore, that when a referee has discredited testimonial evidence, either expressly or by implication, the Board must indicate its reasons for overturning the referee’s finding on credibility. The Board must, in its decision, point to documentary or other testimonial evidence which supports the testimony discredited by the referee, or to specific inconsistencies within the testimony accepted by the referee which would justify rejecting the referee’s findings. To the extent that prior cases of this Court are inconsistent with our holding herein, they are overruled.

Id. 501 A.2d at 1163 (footnote omitted).3

Based on that decision, we would be inclined to hold in this case that, since the Board gave no reasons for overturning the referee’s finding on credibility, we must either reverse or remand for the Board’s statement of its reasons for deciding the issue of credibility and rejecting the findings of the referee. However, our Supreme Court thereafter decided Peak v. Commonwealth Unemployment Compensation Board, 509 Pa. 267, 501 A.2d 1383 (1985) and held:

Nevertheless, appellant claims, even if the Board remains free to reverse its referee’s credibility determinations when the evidence is conflicting, its decision here cannot stand because Treon also requires the Board to set forth its reasons for doing so whenever it departs from a [335]*335referee’s findings of fact. To the extent Treon does impose such a requirement, its purpose is to ensure an adequate basis for judicial review. On this record, the Board’s reason for reversing the referee is plain enough. Unlike the referee, it chose to believe the employer, not the employee. It disagreed with the referee’s factual resolution of conflicting evidence, a power it has under Section 504 of the statute, as amended, 43 P.S. § 824 (Supp.1985).

Id., 509 Pa. at 273, 501 A.2d at 1387 (emphasis added).

Thus, in that case the Supreme Court held a simple statement by the Board that “it chose to believe the employer, not the employee” was a plain enough reason to allow an adequate appellate review.

This Court on a petition for reargument then reexamined our Spencer decision in light of Peak, granted reconsideration, vacated our remand order and affirmed. Spencer v. Unemployment Compensation Board of Review, 93 Pa. Commonwealth Ct. 270, 504 A.2d 991 (1986). There we said:

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603 A.2d 271, 145 Pa. Commw. 329, 1992 Pa. Commw. LEXIS 114, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ma-bruder-sons-inc-v-unemployment-compensation-board-of-review-pacommwct-1992.