Horace J. Culbertson, Culbertson & Culbertson, Lewistown, for appellant.
William H. Wood, Charles E. Thomas, Hull, Leiby & Metzger, Harrisburg, S. G. Wellman, Mooney, Hahn, Loeser, Keough & Freedheim, Cleveland, Ohio, of counsel for North American Refractories Co., Intervening-appellee.
William L. Hammond, Sp. Deputy Atty. Gen., Frank F. Truscott, Atty. Gen., Harrisburg, for appellee.
Before Rhodes, P. J., and Ross, Gunther, Wright and Ervin, JJ.
[ 176 Pa. Super. Page 307]
The employer, North American Refractories Co., closed its plant in Mt. Union, Pennsylvania, on June 25, 1952, because of the nationwide steel strike at that time. The factory remained closed until July 23, 1952. Appellant filed claims for unemployment compensation for the weeks he was out of work, and received compensation except for the two weeks ending July 2 and 9, 1952. The Bureau disallowed the claims for those two weeks, the referee reversed the Bureau, the Board of Review reversed the referee and disallowed the claims. Claimant has appealed.
The basis for the disallowance was that, on June 27, 1952, claimant received a check for accrued pay and also for two weeks vacation pay. There was in force at the time a contract between the employer and the union guaranteeing certain employes, including claimant, two weeks paid vacation, the employer reserving the right to allot vacation periods. The question
[ 176 Pa. Super. Page 308]
before this court is whether claimant's vacation pay was properly allocated by the Board to the weeks of July 2 and 9, § 952, when claimant was out of work due to the shutdown of the plant.
The claimant was held disqualified for benefits because of Section 4(u) of the Unemployment Compensation Act, 43 P.S. § 753, which provides, inter alia, '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 * * *.' If the claimant's vacation pay was correctly allocable to the two weeks following the actual payment thereof, he is clearly disqualified under the above quoted section of the Act.
Where the Board's decision is against the party upon whom rests the burden of proof, we must sustain the findings of fact and conclusions of law of the Board if they are consistent with each other and are supported by competent credible evidence. Moreover the evidence must be viewed in the light most favorable to the party in whose favor the Board has found. Hanna Unemployment Compensation Case, 172 Pa. Super. 417, 94 A.2d 178. The evidence, in addition to that heretofore related, disclosed that the check received by claimant stated thereon '1952 Vacation Pay and Wages for period ending June 15, 1952.' The contract with the union provided that 'vacation pay to be given employe at the time the employe takes his vacation.' Also, there was evidence that the union persuaded the employer to make vacation payments to all employes on July 3, 1952, and later ...