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Anyone who was stranded or inconvenienced by the SEPTA work stoppage of 1998 would probably say it was, in fact, a strike. But now, thanks to the Commonwealth Court, the employees who stopped working for those six weeks know it was a strike, too. Three SEPTA employees petitioned for unemployment compensation benefits, claiming they were the victims of a lockout, rather than striking workers. A three-judge panel of the court in Zappono Unemployment Compensation Board of Review said their union’s actions in the strike proved otherwise. In the opinion, Commonwealth Court Judge Doris Smith said the employees, Michael Zappono, Victoria Dupree and Allison Cooper, were members of Transport Workers Union Local 234, the union that initiated the work stoppage on June 1, 1998. The stoppage occurred after the union’s collective bargaining agreement with SEPTA expired, on March 15 of that year. The union members continued to work on a day-to-day basis under the terms of the expired contract until May 31. SEPTA offered to continue working with the union under the expired contract, but the union refused. However, it did not tell SEPTA why it refused — the union believed SEPTA had unilaterally changed the terms and conditions of the expired contract. Smith said that during the stoppage, the union made public statements that it stopped work because SEPTA “took a hard bargaining position” and its proposals were unacceptable. On June 4, the union offered to resume work under the terms of the expired contract, if SEPTA agreed to binding arbitration to resolve the contract negotiations. SEPTA refused. The work stoppage continued until July 11. The claimants applied for unemployment benefits during the stoppage, arguing that it was a lockout rather than a strike since SEPTA refused the June 4 offer. On appeal of a decision by the Office of Employment Security denying their petition, the claimants argued before an unemployment compensation referee that the stoppage was a lockout because SEPTA unilaterally changed the terms of the expired contract. The claimants said the contract was changed on three points: Work-assignment pickings — the claimants said SEPTA drastically reduced the types of assignment available for union members to choose. Medically Disabled Temporary Duty program — the claimants said SEPTA failed to place union members who were eligible for MDTD assignments into temporary positions. Safety awards banquet — the claimants said SEPTA failed to reschedule the banquet in April or May of 1998. The critical contract negotiations persuaded SEPTA not to hold the banquet in those months, Smith said in a footnote. The referee said the claimants had not proved the work stoppage was a lockout because “by failing to inform the employer of their belief that the employer had made unilateral changes to the pre-existing contract, the employer had no opportunity to respond and attempt to address the union’s contentions, or to refuse to allow the union to continue working under the terms and conditions of the pre-existing contract as defined by the union.” The referee affirmed the OES, and the Unemployment Compensation Board of Review affirmed the referee. In the Commonwealth Court opinion, Smith said an employee is given the right to unemployment compensation benefits in the event of a lockout under Section 402(d) of the Unemployment Compensation Law. The state Supreme Court created a test for courts to use when deciding whether a work stoppage was the result of a lockout or a strike in Vrotney Unemployment Compensation Case in 1960. The test contains two parts. The court considers whether the employees offered to work for a considerable amount of time under the pre-existing contract in order to prevent a stoppage before a new contract could be agreed on and whether the employer agreed to allow the employees to work for a reasonable amount of time under the pre-existing terms. “If the employer refuses to so extend the expiring contract and maintain the status quo, then the resulting work stoppage constitutes a `lockout,’” the Vrotney court said. Because the key of the Vrotney test is the offer to continue working, Smith said, the question is which side decided to stop operating under the pre-existing terms until negotiations were finalized. It was clear in the Zappono case, she said, that the union decided to stop operating under the expired contract. The court was most influenced by the fact that the union did not inform SEPTA that it believed SEPTA had altered the status quo. “To the contrary, the union made public statements indicating that it had initiated the work stoppage for reasons unrelated to the alleged changes, and the union offered to return to work under the pre-existing terms and conditions after June 1, 1998 only if SEPTA agreed to binding arbitration,” Smith said. “An offer to continue working only if the other party submits to a new term to which the party has no pre-existing obligation to accede does not constitute an offer to continue working under the pre-existing terms and conditions of an employment contract.” Smith said allowing the claimants to recover would offend the “fundamental purposes” of the Vrotney test, which was designed to encourage the continuation of the work relationship while negotiations are under way.

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