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SHAY UNEMPLOYMENT COMPENSATION CASE. SHAY v. UNEMPLOYMENT COMPENSATION BOARD REVIEW. UNGER (03/14/67)

decided: March 14, 1967.

SHAY UNEMPLOYMENT COMPENSATION CASE. SHAY, APPELLANT,
v.
UNEMPLOYMENT COMPENSATION BOARD OF REVIEW. UNGER, APPELLANT, V. UNEMPLOYMENT COMPENSATION BOARD OF REVIEW



Appeals from decisions of Superior Court, March T., 1966, Nos. 150 and 151, affirming decisions of Unemployment Compensation Board of Review, Nos. B-92828 and B-92829, in re claims of Paul Shay and Lee Unger.

COUNSEL

Jerome H. Gerber, with him Handler and Gerber, for appellants.

Sydney Reuben, Assistant Attorney General, with him Raymond Kleiman, Deputy Attorney General, and Edward Friedman, Attorney General, for Unemployment Compensation Board of Review, appellee.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Musmanno. Mr. Justice Roberts concurs in the result. Mr. Chief Justice Bell and Mr. Justice Jones dissent.

Author: Musmanno

[ 424 Pa. Page 288]

The Superior Court affirmed the decision of the Unemployment Compensation Referee and the Unemployment Compensation Board of Review denying unemployment compensation to two claimants, Paul Shay and Lee Unger, stating that they had left their respective

[ 424 Pa. Page 289]

    jobs without cause of a necessitous and compelling nature. We allowed allocatur.

The claimants were both employees of the Bethlehem Steel Company in Lebanon. Shay had been employed as a carpenter for 14 years and Unger as a bricklayer for 8 years. On December 31, 1964, Shay, who was then earning $3.055 per hour, was informed he would be laid off on account of lack of work. Unger, who was earning $3.25 per hour, was laid off on January 5, 1965. Both employees were advised they could work as laborers at $2.285 per hour. Under the terms of their Union's collective bargaining agreement, the men were permitted to take a layoff rather than accept the reduction in wages and change of duties.

They filed for unemployment compensation. The referee ruled against them, asserting that while the work offered would net less pay it was still a substantial wage and that, in any event, the transfer was only temporary.

Our review of the record compels the conclusion that the referee, as well as the Unemployment Compensation Board, and the majority of the Superior Court, failed to apply properly the governing terms of the Unemployment Compensation Law. Section 402 of the Act (Act of December 5, 1936, P. L. (1937) 2897, as amended, 43 P.S. 751 et seq.), provides: "An employee shall be ineligible for compensation for any week -- (a) In which his unemployment is due to failure, without good cause, . . . to accept suitable work when offered to him by the employment office or by any employer, irrespective of whether or not such work is in 'employment' as defined in this act . . . (b) (1) In which his unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature, irrespective of whether or not such work is in 'employment' as defined in this act . . . in determining whether or not an employee has left his work voluntarily without cause of a

[ 424 Pa. Page 290]

    necessitous and compelling nature, the department shall give consideration to the same factors, insofar as they are applicable, provided, with respect to the determination of ...


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