16 Pa. Commw. 485 | Pa. Commw. Ct. | 1975
Opinion by
This opinion involves the appeal of eleven employes of the Pennsylvania State Oral School for the Deaf (School) located in Scranton from an order of the Unemployment Compensation Board of Review (Board) denying unemployment. compensation benefits. Although these employes include two separate categories, viz. houseparent and teacher aide, and although their history of employment varies, it was agreed, and the record supports, that for purposes of this opinion the legal issues involved are identical for each of the eleven employes.
For several years, the employes worked under an oral agreement whereby they received biweekly pay for the school calendar year, including approximately two weeks prior to the opening of school in September for the purpose of preparing the dormitories and classrooms through the end of the school year in the middle of June. For the school year 1971-72 they reported for work in the latter part of August, 1971. They concluded the year’s work on June 16, 1972. They were considered provisional employes and had not qualified as perma
As we have already noted, these employes were not covered by any formal written employment contract. Over the years, a system or policy developed whereby all of these employes were carried upon the roll of the school during the summer months for the purpose of employment in the following September, unless the employe was notified of his termination at the end of the previous school year. For a period of fifteen years no employe had ever been refused employment in the fol
On or about July 1, 1972, the employes filed applications for unemployment compensation benefits under the Unemployment Compensation Law (Act), Act of December 5, 1936, Second Ex. Sess., P. L. (1937) 2897, as amended, 43 P.S. §751 et seq. In early August of 1972, the Bureau of Employment Security determined the employes to be ineligible. Upon appeal and after hearing, the referee affirmed the Bureau’s decision. The employes again appealed and the Board, on October 17, 1973, affirmed the referee’s decision, but later vacated its decision and scheduled another hearing which was held January 21,1974. Following the hearing, the Board on February 8, 1974 reinstated its order of October 17, 1973, in effect affirming the adjudication of the referee and denying benefits. The employes now appeal to this Court.
Our scope of review in this type of case, absent fraud or error of law, is to determine if the findings of the Board are supported by substantial evidence. See Stalc v. Unemployment Compensation Board of Review, 13 Pa. Commonwealth Ct. 131, 318 A. 2d 398 (1974).
On appeal to this Court, the employes present two
The employes contend that three of the Board’s findings of fact, numbered 4, 8 and 10 are not supported by substantial evidence. Findings 8 and 10 read as follows:
“8. There was an implied understanding among employees that they were to return for the following school year unless they were notified otherwise. The claimant had worked under this arrangement with the employer since 1967.
“10. During the period at issue, the claimant was still carried on the rolls of the employer and was not generally available for work.” Our review of the record permits us to conclude that there is substantial evidence to support both of these findings. Finding of fact No. 4 reads as follows: “4. The employer paid the claimant her annual salary by dividing the total yearly amount into 26 increments and paid the claimant the total salary over 22 pay periods.” As our summary of the facts has indicated, this finding is in error because the total annual salary was not paid over the 22 pay periods. Bather the total anmial salary for the classification or grade of state employe was divided by 26, and only 22 such biweekly payments were made. In other words, these employes received approximately 85% of the annual pay for their grade. This error, however, is not controlling or fatal.
The controlling issue in this case is whether or not the Board committed an error of law by determining that the employes were not unemployed and not avail
“Compensation sball be payable to any employe wbo is or becomes unemployed, and wbo—
“(d) Is able to work and available for suitable work....” Tbe Board reasoned tbat because tbe employes expected to return to tbeir employmeent within about eight weeks time, they were not available for work within the meaning of Section 401(d). The employes argue that the Board was in error because they were unemployed and unpaid for an eight-week period during which they were available for some kind of work. The employes compare this case to a plant shutdown vacation and contend they are entitled to benefits under the provisions of Section 4(u) of the Act, 43 P.S. §753(u) and Section 404(d) of the Act, 43 P.S. §804(d) (Supp. 1974-1975).
A claimant to be eligible for benefits must be “actually and currently attached to the labor force.” Shira v. Unemployment Compensation Board of Review, 10 Pa. Commonwealth Ct. 457, 310 A. 2d 708 (1973); Hunt v. Unemployment Compensation Board of Review, 8 Pa. Commonwealth Ct. 577, 302 A. 2d 866 (1973). In Pinto Unemployment Compensation Case, 168 Pa. Superior Ct. 540, 542, 79 A. 2d 802, 803 (1951), it was stated: “A claimant is required at all times to be ready, able, and willing to accept suitable employment, temporary or full time. . . . But one may render himself unavailable for work by conditions and limitations as to employment. Willingness to be employed conditionally does not necessarily meet the test of availability. The determination of availability is largely a question of fact for the Board.” See also Knox v. Unemployment Compensation Board of Review, 12 Pa. Commonwealth Ct. 200, 315 A. 2d 915 (1974).
Lybarger Unemployment Compensation Case, 203 Pa. Superior Ct. 336, 201 A. 2d 310 (1964), aff’d., 418 Pa. 471, 211 A. 2d 463 (1965), involved an agreement between the claimant’s union and his employer providing that in January the employer would adjust personnel, retaining by seniority the number of employes required
In effect what the employes in this case are requesting is that the government should provide them with a full year’s income because theey have agreed to work and be paid for only 44 weeks of each year. If the employes in this case had made an application for unemployment compensation whereby they had indicated that they were available for suitable work without any limitation, then there is little doubt they would have been entitled to benefits commencing June 24, 1972. This record indicates, however, that each and every one of these employes recognized that they intended to return to their employment at the school in August or September of 1972. For example, as a part of the record in this case, one of these eleven employes stated at her interview in the Bureau of Employment Security’s local office: “I have looked for work other years during the summer months but no one was willing to have me because they knew I would return to my regular job in September when school opened.” This very frank admission is typical of these employes’ position that they were not actually and permanently attached then to the labor force. In short, they were not available for suitable work. See Trella v. Unemployment Compensation
Order
And Now, this 14th day of February, 1975, the order of the Unemployment Compensation Board of Review on the claims of Roseann Chickey, Michael J. Kabillus, Janet E. Lamb, Margaret Walsh, Ann M. Micciche, Mary Vitello, Rachel D. Davis, Ann F. Rabie, Raphela M. Rossi, Edna S. Carroll and Jean D. Perry is hereby affirmed.
The record indicates, however, that at some time subsequent to the school year in question (1971-72) the positions will be subject to civil service examination.
Section 4(u) of the Act, 43 P.S. §753(u) reads as follows:
“The following words and phrases, as used in this act, shall have the following meanings, unless the context clearly requires otherwise.
“(u) ‘Unemployed.’
“An individual shall be deemed unemployed (I) with respect to any week (i) during which he performs no services for which remuneration is paid or payable to him and (ii) with respect to which no remuneration is paid or payable to him, or (II) with respect to any week of less than his full-time work if the remuneration paid or payable to him with respect to such week is less than his weekly benefit rate plus his partial benefit credit.
“Notwithstanding any other provisions of this act, an employe who is unemployed during a plant shutdown for vacation purposes shall not be deemed ineligible for compensation merely by reason of the fact that he or his collective bargaining agents agreed to the vacation.
“No employe shall be deemed eligible for compensation during a plant shutdown for vacation who received directly or indirectly any funds from the employer as vacation allowance.”
“Compensation shall be paid to each eligible employe in accordance with the following provisions of this section except that compensation payable with respect to weeks ending in benefit years which begin prior to the first day of October, one thousand nine hundred seventy-one shall be paid on the basis of the provisions of this section in effect at the beginning of such benefit years.
“(d) Notwithstanding any other provisions of this section each eligible employe who is unemployed with respect to any week ending subsequent to the first day of October, one thousand nine hundred seventy-one, shall be paid with respect to such week, compensation in an amount equal to his weekly benefit rate less the total of (i) the remuneration, if any, paid or payable to him with respect to such week for services performed which is in excess of his partial benefit credit; (ii) vacation pay, if any, except when paid to an employe who is permanently or indefinitely separated from his employment and (iii) that part of a retirement pension or annuity, if any, received by him under a private pension plan to which a base-year employer of such employe has contributed which is in excess of forty dollars ($40) per week. Retirement pension or annuity payments received by the employe under the Federal OASI program, the Federal Railroad Retirement program or under any private retirement plan to which the employe was the sole contributor, shall not be considered a deductible retirement pension or annuity payment for the purpose of this subsection. The provisions of this subsection shall be applicable whether or not such vacation pay, retirement pension or annuities, or wages are legally required to be paid. If such retirement pension or annuity payments deductible under the provisions of this subsection are received on other than a weekly basis, the amount thereof shall be allocated and pro-rated in accordance with the rules and regulations of the department. Vacation pay, or other remuneration deductible under the provisions of this subsection shall be pro-rated on the basis of the employe’s normal full-time weekly wage and as so pro-rated shall be allocated to such period or periods of unemployment as shall be determined by rules and regulations of the department. Such compensation, if not a multiple of one dollar ($1.00), shall be computed to the next higher multiple of one dollar ($1.00).”