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GLEN ALDEN COAL CO. v. UNEMPLOYMENT COMPENSATION BOARD REVIEW. (MISINKAITIS UNEMPLOYMENT COMPENSATION CASE.) (07/19/51)

July 19, 1951

GLEN ALDEN COAL CO.
v.
UNEMPLOYMENT COMPENSATION BOARD OF REVIEW. (MISINKAITIS UNEMPLOYMENT COMPENSATION CASE.)



COUNSEL

J. H. Oliver, Franklin B. Gelder, Scranton, for appellant.

William L. Hammond, Sp. Deputy Atty. Gen., Charles J. Margiotti, Atty. Gen., Roland M. Morgan, Harrisburg, for appellee.

Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.

Author: Ross

[ 169 Pa. Super. Page 125]

ROSS, Judge.

In this unemployment compensation case, the base-year employer has appealed from an award of benefits made by the Board of Review.

[ 169 Pa. Super. Page 126]

The claimant, Peter Misinkaitis, was last employed by the Eastern Auto Forwarding Company as a truck driver hauling Chryslers, for approximately eight months, his last day of work being November 10, 1949, on which date he was laid off from his employment due to 'model changes effected by the Chrysler Corporation' and at the time of his layoff he was informed that he would be recalled within 'two to five weeks' and as a matter of fact he was recalled in five weeks. Immediately after his layoff, he was offered employment by the base-year employer in the same job he had held prior to his leaving its employ. He refused the proffered employment because of the disparity in wages and the fear that he would not be re-employed in the higher paying employment from which he was temporarily laid off.

During his employment with his last employer the claimant's earnings ranged from $110 to $115 a week. The employment offered to him by the base-year employer paid $13 a day.

The board concluded that the work offered by the appellant and refused by the claimant was not 'suitable work', stating as the basis of its decision: '* * * claimant had established himself in the occupation of a truck driver and, over a substantial period of time, has demonstrated that he has a wage earning capacity between $110 and $115 per week. In addition to this fact, claimant had been unemployed only five days at the time the offer was made and, on the basis of the condition of the labor market and the promise of reemployment by his last employer, it is evident that he had a reasonable opportunity and expectation of resuming his former employment within a short time. Indeed, this is confirmed by the fact that claimant was reemployed about a month later. On the other hand, the work offered to claimant would have paid a wage of approximately fifty per cent. of his demonstrated

[ 169 Pa. Super. Page 127]

    earning capacity. To have required the claimant to accept this work and lose or at least lessen his opportunity of resuming his former employment, would have worked a substantial hardship upon the claimant.'*fn1

To the extent that the conclusion of the board of review was influenced by the testimony tending to show that the claimant would have forfeited his former job as the result of being expelled from his union, it is invalid. Barclay White Co. v. Unemployment Compensation Board, 356 Pa. 43, 50 A.2d 336, squarely decides that a claimant does not have good cause to refuse suitable work on the ground that to do so would result in his suspension or expulsion from his union; and by necessary implication that such a circumstance does not prevent the proffered employment from being 'suitable work'. Consequently, the only other question presented by this appeal is whether a claimant having a demonstrated earning capacity of $110 to $115 a week, and who expects to be recalled to employment paying that wage within two or three weeks, is justified in ...


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