Appeal, No. 287, Oct. T., 1957, from decision of Unemployment Compensation Board of Review, May 15, 1957, No. B44454, Appeal No. B9-F-1344, in re claim of Lucy M. Fraley. Decision affirmed.
William L. Hammond, with him Ronald Souser and Souser, Schumacker, Kleeb & Lukenheimer, for appellant.
Sydney Reuben, Assistant Attorney General, with him Thomas D. McBride, Attorney General, for appellee.
Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.
[ 184 Pa. Super. Page 519]
The claimant Lucy M. Fraley had been in the employ of the appellant company, continuously, for eleven years. She was in the fourth month of pregnancy and her attending physician on May 12, 1955 certified that "She has been advised to stay away from work for the duration of her pregnancy and post-partum period." It was on this certificate that a six-months leave of absence was granted, by appellant, beginning with the above date, in accordance with a subsisting collective bargaining agreement entered into with the employer by claimant's union. The provision of the contract, insofar as it is material to the grant of such leave of absence provides: "Female employees, in case of maternity, shall have the right to receive a leave of absence of six (6) months as they may choose. During such leave of absence said employee's seniority shall accumulate. If, however, the employee desires additional time, she may only take such time after taking a doctor's examination, and only for one month additional at a time. Should the doctor rule that the employee is fit to return to work and she does not do so, she shall lose all seniority in the plant."
There is no dispute as to the facts. On May 12, 1955, the claimant's last day of work, she understood that her child would be born about October 4, 1955 and it was on that expectation that the six-months leave of absence was applied for and granted. The child however was not born until November 22. A representative of the
[ 184 Pa. Super. Page 520]
bureau, who had investigated the attending circumstances, testified, without contradiction: "The ordeal this girl went through, giving birth, was out of the ordinary. There was a question of life and death; nevertheless, the baby was born and put into an incubator ..." Three weeks later (under all the evidence within a reasonable post partum period) on December 26, this same representative at claimant's request reported to the employer's personnel officer that she was available for work and was told that there was no work for her. Thereupon on the advice of the bureau representative the claimant filed her claim for unemployment compensation.
Benefits were refused by the referee who took the view, under § 402(b) of the Unemployment Compensation Law, as last amended by the Act of March 30, 1955, P.L. 6, 43 PS § 802, that claimant's unemployment was voluntary and without good cause. The board in reversing the referee stated: "We hold that the claimant cannot be disqualified from receiving benefits under the provisions of Section 402(b) of the Law. The claimant in the instant case requested a six month leave of absence and was granted it with the anticipation that her child would be born on or about October 4, 1955. However, claimant's child wasn't born until November 22, 1955, and therefore claimant was not able to return to work on November 12, 1955, at which time her six month leave expired. Claimant sought reinstatement three weeks after the birth of her child thereby showing her good faith in attempting to maintain the employer-employee relationship. Under these circumstances we see no basis for holding that claimant voluntarily terminated her employment without a necessitous and compelling reason."
We are in accord with the reasoning of the board. We too are convinced that the ...