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Labor & Employment – Unemployment Comp – Eligibility – Strikebreaker Provision

Where petitioners had been laid off due to lack of work, and while they were receiving unemployment compensation, the union struck the company, and the company began calling laid-off workers back, the petitioners’ refusal to return to work under these circumstances will not result in loss of their unemployment benefits.

The Virginia Employment Commission denied benefits to the workers. The commissioner’s position is that the employees were not “disqualified” for failure to accept suitable work under Code § 60.2-618, but rather they were not “eligible” because their unemployment was due to a labor dispute in active progress as contemplated by Code § 60.2-612. I conclude that the commissioner was in error in denying the benefits to the employees in these cases.

I am satisfied that the commonwealth’s policy of neutrality in labor disputes would be violated with the commissioner’s construction of these statues and resultant finding that these employees were not eligible to receive unemployment benefits. The state’s neutrality is not compromised by allowing employees on indefinite layoff prior to the strike to continue receiving their benefits.

It is clear these employees had previously been determined to be eligible for unemployment benefits. It is clear these employees were on an indefinite layoff status and that the court’s finding of such is not in conflict with findings of the commission and, indeed, any finding to the contrary would not stand. It is clear that but for the strike and the resulting job vacancies, the recalls would not have been issued. It is clear that the company was attempting to use the state unemployment compensation system to generate strikebreakers in order to avoid the economic consequences of a labor strike. It is clear that to permit the state unemployment compensation system to be used in this manner tilts the economic scales in favor of the employer.

I conclude the commissioner was in error in determining these employees did not meet the eligibility requirements of the Code.

Anderson v. VEC (Flannagan) No. CL 920003728, Mar. 10, 1993; Smyth County Cir.Ct.; Mary Lynn Tate, Larry T. Harley for petitioners; James W. Osborne, AAG, for respondent. VLW 093-8-260, 5 pp.

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