Appeals by Department of Labor and Industry, from decision of Unemployment Compensation Board of Review, Nos. B-64-7-N-52 and B-64-9-F-71, in re claims of Louis V. Ungarean, Wayne E. Tracey et al.
Morley W. Baker, Assistant Attorney General, with him Walter E. Alessandroni, Attorney General, for Department of Labor and Industry, appellant.
Sydney Reuben, Assistant Attorney General, for Unemployment Compensation Board of Review, appellee.
Jerome H. Gerber, with him Handler and Gerber, for intervening appellees.
Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, and Hoffman, JJ. (Flood, J., absent). Opinion by Watkins, J.
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This appeal involves 48 employees of the Rheem Manufacturing Company of Monaca, Pennsylvania. The claimants filed for benefits and the Bureau of Employment Security denied benefits under § 404(d) of the Act, 43 PS § 804(d). The claimants appealed. The Referee reversed the Bureau and awarded benefits. The Bureau appealed to the Unemployment Compensation Board of Review which affirmed the Referee. This appeal by the Bureau followed.
The claimants' last day of work was July 16, 1964. They were out of work because of a plant shutdown. The plant, pursuant to a Union agreement, was closed between July 20, 1964, and August 9, 1964 for vacation purposes. However, the same Union agreement permitted individual employees to designate during the calendar year, with the consent of the employer, the vacation periods which they desired. All of the claimants in this appeal fall within the category of employees who designated a time other than the vacation
[ 207 Pa. Super. Page 508]
shutdown period for their vacations with the consent of the employer.
The issue in this appeal is whether the compensation authorities had the power to allocate vacation pay to the general vacation shutdown period when the vacation was taken at a time other than that period.
The claimants were entitled to three weeks vacation with vacation pay. They took their vacations, with the consent of the employer at times other than the general vacation shutdown. Having received their vacation pay for the periods in question they did not file for unemployment compensation. They were ready and willing to work during the period of the general vacation shutdown. So that in effect, these claimants, by force of circumstance, were obliged to remain away from work six weeks and were given their vacation pay for three weeks. They fall into several categories: Some of the claimants took their vacation during a three-week period that included part of the plant vacation shutdown; some took their vacations before and after the vacation shutdown period; and some were not entitled to vacations at the time of the general vacation shutdown but qualified and received their vacations at a subsequent time within the calendar year. We believe that the decision as to the right to allocate will determine the matter for all claimants regardless of the above categories.
Section 4(u) of the Unemployment Compensation Law, Act of December 5, 1936, Second Ex. sess., P. L. (1937) 2897, 43 PS § 753 et seq., defines the term "unemployed" as follows:
". . . 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, or ...