Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Thomas G. Robertson, No. B-112543.
James T. Carney, for appellant.
Sydney Reuben, Assistant Attorney General, with him Israel Packel, Attorney General, for appellee.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Blatt.
Thomas G. Robertson (claimant) was employed as a tool repairman by the United States Steel Corporation (U.S. Steel) at its Clairton Works. On July 31, 1971, as a result of the cyclical decrease in production which habitually occurs in the steel industry in a year when a new collective bargaining agreement is to be negotiated, he was laid off. He then began to receive benefits pursuant to the Unemployment Compensation Law, Act of Dec. 5, 1936, Second Ex. Sess., P.L. (1937) 2897, 43 P.S. § 751 et seq., and he also received a weekly Supplemental Unemployment Benefit of $53.27 from U.S. Steel. From September 25, 1971 through October 1, 1971, the claimant took his vacation, for which he had been scheduled in December, 1970, and U.S. Steel paid him $197.80 in vacation pay.
U.S. Steel requested that this vacation pay be offset against the unemployment compensation benefits, but this request was denied by the Bureau of Employment Security. An appeal from this action was then taken to the Unemployment Compensation Board of Review (Board) and a hearing was held before a referee, who allowed an offset of $169.55 of the vacation pay for the benefit week ending October 1, 1971, but refused to offset $28.25 for the benefit week ending October 8, 1971. U.S. Steel appealed to the Board, which affirmed the order of the referee.
The scope of review of this Court in an unemployment compensation case is set out in Section 510 of the Unemployment Compensation Law, 43 P.S. § 830, as follows: "In any appeal . . . the findings of the board or referee, as the case may be, as to the facts, if supported
by the evidence and in the absence of fraud, shall be conclusive, and in such cases the jurisdiction of the court shall be confined to questions of law. . . ." See James v. Unemployment Compensation Board of Review, 6 Pa. Commonwealth Ct. 489, 296 A.2d 288 (1972).
In this case there are no essential differences over the facts as found by the referee and the Board. Neither party disputes the fact that the claimant was laid off from his job with the expectation that he would someday be called back to work but with no indication as to when that call-back would occur. It is also undisputed that he was paid by U.S. Steel for vacation time which he had scheduled long before he was laid off. During the layoff the claimant retained his seniority rights with U.S. Steel and continued to accrue service for the company's pension plan and other employee benefit plans. The only real point of dispute is whether or not $28.25 of the vacation pay received by the claimant should be applied to offset the unemployment compensation benefits due him for the week ending October 8, 1971.
The applicable statute here is Section 404(d)(ii) of the Unemployment Compensation Law, 43 P.S. § 804(d)(ii). It provides: "Notwithstanding any other provisions of this section each eligible employe who is unemployed with respect to any week ending subsequent to the first day of October, one thousand nine hundred seventy-one, shall be paid with respect to such week, compensation in an amount equal to his weekly benefit rate less the total of . . . (ii) vacation pay, if any, except when paid to an employe who is permanently or indefinitely separated from his employment. . . ." (Emphasis added.) Prior to October 1, 1971, the ...