17 Pa. Commw. 281 | Pa. Commw. Ct. | 1975
Opinion by
This is an appeal by Kathleen M. Myers (Myers) from an order of the Unemployment Compensation Board of Review (Board), dated February 5, 1974, which affirmed an order of an unemployment compensation referee, dated July 14, 1970, denying Myers unemployment compensation benefits.
Myers was a full-time clerical employe of the International Powder Metallurgy Corporation (I.P.M.) when, on April 14, 1970, she requested a reduction in her working hours so that she might be able to spend more time at home with her pre-school age son. The reduction in hours was granted by I.P.M., and both parties characterize Myers’ new schedule as “part-time.” The record reveals that, pursuant to this new arrangement, Myers worked approximately 20 hours per week, which was half of the conventional 40-hour week which she had been working prior to the reduction. On June 10, 1970, Myers was laid off when I.P.M. replaced her with a full-time employe. Myers applied for unemployment compensation benefits, which were denied by the Bureau of Employment Security (Bureau), because, in the Bureau’s view, she had voluntarily left her employment “without cause of a necessitous and compelling nature,” as required by Section 402(b) (1) of The Unemployment Compensation Law (Law), Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802 (b) (1).
In applying this section of the Law, the Board reasoned that Myers’ ineligibility followed because “ [testimony ... by a representative of the Employment Service indicates that there were few job opportunities for persons possessing her skills in both a full time and part time capacity. Under the circumstances, therefore, the Board is constrained to hold that the claimant has so limited her availability as to remove herself from the labor market.”
Our scope of review is limited to determining questions of law, and, absent fraud, a determination of whether the Board’s findings are supported by substantial evidence. Stalc v. Commonwealth of Pennsylvania, Unemployment Compensation Board of Review, 13 Pa. Commonwealth Ct. 131, 134, 318 A. 2d 398, 400 (1974); Hinkle v. Commonwealth of Pennsylvania, Unemployment Compensation Board of Review, 9 Pa. Commonwealth Ct. 512, 514, 308 A. 2d 173, 174 (1973).
The crux of this case is whether or not Myers was “available for suitable work” during the period for which she claims benefits, or, stated another way, whether there was a reasonable opportunity for securing such work in the vicinity in which she lived. In Shay Unemployment Compensation Case, 177 Pa. Superior Ct. 294, 111 A. 2d 174 (1955), the Superior Court settled any question regarding whether benefits can be denied simply because a claimant is willing to do only part-time work. As the
This Court has, at least inferentially, followed Shay in Hunt v. Unemployment Compensation Board of Review, 8 Pa. Commonwealth Ct. 577, 302 A. 2d 866 (1973), where the question was whether a claimant was “available for suitable work” under section 401(d) of the Law, when she limited her availability to only night-time hours. In Hunt, Judge Crumlish took cognizance of “the well-established principle that a claimant may render himself unavailable for work by imposing conditions and limitations on employment availability,” 8 Pa. Commonwealth Ct. at 583, 302 A. 2d at 869, but he went on to note that the bare existence of a self-imposed limitation on availability for work is not, of itself, sufficient to support a denial of benefits. The real inquiry defined by the Shay and Hunt cases, supra, is whether the claimant’s self-imposed limitations effectively removed her from the local labor market.
As noted above, the Board specifically found that there were “few” job opportunities available to Myers on a part-time basis. This is not at all tantamount to concluding that there was not a “reasonable opportunity for securing such work in the vicinity” under the holding in Shay, supra.
The entire testimony supporting the Board’s finding on this critical point is contained in the following passage from the record: “Referee to Bureau Representative:
[Irrelevant Discussion]
“Bureau Representative: There could have been ... we could of had an opening for part-time workers during those months, I just can’t recall . . . that far back. But as I say again, they are very scarce. Counsel to Bureau Representative : Q. In other words, there are both full-
In addition to the weakness and qualified conclusions found in the above extract, two other uncontradicted record facts should be noted on the question of the availability of part-time work. First, Myers did, in fact, maintain part-time employment with I.P.M. for almost two months prior to her layoff (from April 14, 1970 until June 10, 1970). Second, Myers obtained employment as a secretary some time in the autumn of 1970 (the record is unclear on the precise date), has continued to work at this new position, and, for at least some of the time, works on a part-time basis.
After a careful review of the testimony taken below, we feel that there is not the requisite substantial evidence present to support a conclusion that there was no reasonable opportunity for Myers to secure employment on a part-time basis. We fully understand that it is not our role to judge the credibility of the witnesses appearing before the referee or the Board, or to choose which inferences to draw from the testimony presented. Loder v. Unemployment Compensation Board of Review, 6 Pa. Commonwealth Ct. 484, 487, 296 A. 2d 297, 299 (1972). We are, however, charged with the duty of reviewing the record to insure that any necessary findings are supported by substantial evidence, and the only evidence offered to support a conclusion that there was no reasonable opportunity for part-time work actually establishes that there were some job opportunities available, albeit “few” of them. That relatively “few” such opportunities were available is not surprising, since common experience would suggest that, relative to full-time job opportunities, part-time positions are less plentiful in almost any occupation.
From the above it necessarily follows that Myers did not render herself “unavailable for suitable work” under section 401(d) of the Law, 43 P.S. §801 (d), and, accordiwly, we
order
And Now, this 17th day of January, 1975, the order of the Unemployment Compensation Board of Review, dated February 5, 1974, is hereby vacated, and the Bureau of Employment Security is hereby ordered to pay to Kathleen M. Myers unemployment compensation benefits in such amount as she is entitled to receive in accordance with the provisions of the Unemployment Compensation Law, Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §751 et seq.
. This finding by the referee has not been challenged.
. Interestingly, we note that in the “Discussion” section of