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DEPARTMENT LABOR AND INDUSTRY v. UNEMPLOYMENT COMPENSATION BOARD REVIEW. (LYBARGER UNEMPLOYMENT COMPENSATION CASE.) (06/11/64)

June 11, 1964

DEPARTMENT OF LABOR AND INDUSTRY, BUREAU OF EMPLOYMENT SECURITY, APPELLANT,
v.
UNEMPLOYMENT COMPENSATION BOARD OF REVIEW. (LYBARGER UNEMPLOYMENT COMPENSATION CASE.)



Appeal, No. 33, March T., 1964, by Department of Labor and Industry, Bureau of Employment Security, from decision of Unemployment Compensation Board of Review, Nos. B-1-D-547 and B-1-A-8026, in re claims of Freeman Lybarger et al. Decision reversed.

COUNSEL

Morley W. Baker, Assistant Attorney General, with him Walter E. Alessandroni, Attorney General, for Department of Labor and Industry, Bureau of Employment Security, appellant.

Sydney Reuben, Assistant Attorney General, with him Walter E. Alessandroni, Attorney General, for Unemployment Compensation Board of Review, appellee.

Jerome H. Gerber, with him Sidney G. Handler, for claimants, intervening appellees.

Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.

Author: Watkins

[ 203 Pa. Super. Page 338]

OPINION BY WATKINS, J.

This is an appeal by the Department of Labor and Industry of the Commonwealth of Pennsylvania, Bureau of Employment Security, from the decision of the Unemployment Compensation Board of Review awarding benefits to the claimant, Freeman Lybarger. The Bureau had held that the claimant was ineligible for benefits under § 402(b)(1) and § 401(d) of the Unemployment Compensation Law, 43 P.S. § 802(b)(1) and § 801(d), in that he voluntarily left his work without cause of a necessitous and compelling nature; and found that he was unavailable for work.

The Referee found him ineligible under § 401(d) and eligible under § 402(b)(1), and affirmed the order of the Bureau as modified. The Board reversed, holding the claimant entitled to benefits. The claims of 29 employees of Talon Manufacturing Company, who became unemployed under similar circumstances, are dependent upon the ultimate decision in this case.

The claimant is an employee of Talon and a member of Local No. 591 I.L.G.W.U. The employer and the union executed a labor agreement which, in part, provided as follows:

"Section 2: Working Schedule (a) Beginning in January, 1961, the Chain Machine personnel shall be employed as follows:

"1. In January, the Company will adjust personnel, retaining by seniority the number of operators required to maintain production at the level of a normal 40-hour week.

"2. Employees with sufficient seniority to remain at work shall be kept as operators until the pay period when their gross earnings received from the company since January amount to five thousand dollars ($5,000),

[ 203 Pa. Super. Page 339]

    plus-or-minus fifty dollars ( $50). Such operators will then go on layoff for the remainder of the year or until all younger operators have been recalled, and additional ones are required in seniority order.

"3. Younger operators on layoff will be recalled in seniority order in sufficient number to maintain production at the level of a normal 40-hour work week for the remainder of the calendar year.

"4. At the first of the year, the younger operators will be laid off and older operators recalled in seniority order from layoff to maintain the schedule at a normal 40-hour work week. These operators will continue working until they have received gross earnings of five thousand dollars ($5,000), plus-or-minus fifty dollars ( $50), when they ...


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