Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Carlo E. D'Angelo, et al., No. B-128757.
Eugene K. Connors, with him C. Arthur Dimond, and Reed, Smith, Shaw & McClay, for appellant.
Daniel R. Schuckers, Assistant Attorney General, with him Sydney Reuben, Assistant Attorney General, and Robert P. Kane, Attorney General, for appellee.
Susan H. Bitensky, with her, of counsel, Bernard Kleiman, for intervening appellee.
Judges Crumlish, Jr., Kramer and Mencer, sitting as a panel of three. President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Rogers.
[ 30 Pa. Commw. Page 633]
Wheeling-Pittsburgh Steel Corporation has appealed from a decision of the Unemployment Compensation Board of Review awarding benefits to Carlo E. D'Angelo. By stipulation of counsel Mr. D'Angelo's circumstances are agreed to be those of about 150 other persons formerly employed by Wheeling-Pittsburgh who sought unemployment compensation. Mr. D'Angelo and the other claimants whose entitlement to unemployment compensation is questioned are represented by the United Steelworkers of America, AFL-CIO, which intervened in their behalf.
Wheeling-Pittsburgh decided to close its rod and wire facilities at Monessen and Allenport, Pennsylvania, because it was unable to compete with lower cost foreign products. Wheeling-Pittsburgh and the Union arranged for each of the employes affected by the shutdown to be personally interviewed in the presence of representatives of the Union as well as management. Each of the employes was informed of his pension rights, if any, and of his rights under a seniority agreement between the Company and the Union Local to bump into positions held by others with less seniority and to bid on vacant positions in the mill. There were 63 positions into which certainly Mr. D'Angelo and probably the other persons affected
[ 30 Pa. Commw. Page 634]
by the rod plant closing, by reason of their high seniority, could have taken, and an additional 38 job vacancies on which they would have high bidding privileges occurred during the phase out period. Each of the employes was asked to state his preference (a) of going on normal pension if over age 65, (b) of going on 30 year pension if under 65 with 30 years service, (c) of going on deferred vested pension if age 40 with 15 years service, (d) of going on 60/15 pension if age 60 with more than 15 or less than 30 years continuous service, (e) of going on 70/80 pension if age 55 or over with age plus continuous service equaling at least 70, or age plus continuous service equaling at least 80, or finally (f) of electing to continue to work under the provisions of paragraph 9 of the December 9, 1964 seniority supplemental agreement between Wheeling-Pittsburgh and the Local. The provision just mentioned says that a senior employe involved in a departmental layoff has no claim to any specific position in the plant and that the management has the option of placing the employe on some other position elsewhere in the plant or replacing the last employe hired in the plant, providing his plant seniority warrants such placement. D'Angelo and the employes whom he represents elected to accept retirement on pension rather than to continue work at other jobs laid before them for bumping or available for bidding.
D'Angelo was 62 years of age and had 40 years continuous service in unskilled work. At the time of his interview he was making $3.792 per hour plus incentive plus cost of living. The 63 jobs into which he could have bumped paid between $3.886 and $3.51 per hour plus incentive plus cost of living, and the 38 jobs on which he would have been in position to bid paid between $4.223 and $3.635 per hour plus incentive plus cost of living.
[ 30 Pa. Commw. Page 635]
Mr. D'Angelo as he was entitled to do chose to accept 70/80 retirement. A section of the pension agreement between Wheeling-Pittsburgh and its employes concerning the 70/80 and disability pensions reads as follows:
Increased Regular Pensions-Permanent Incapacity, 70/80
In the determination of the amount of any regular pension for permanent incapacity or 70/80 retirement, the monthly pension amounts otherwise applicable in making such determination shall, prior to any reductions pursuant to paragraphs 3.10, 3.11 and 3.12, be increased by $105 provided, however, that such increase shall not be applicable with respect to such a regular pension payable for any month for which the participant is eligible for Public Pension.
The Unemployment Compensation Board of Review decided that Mr. D'Angelo was entitled to receive unemployment compensation because although he voluntarily quit his employment he did so for a cause of a necessitous and compelling nature.*fn1 The Board's holding is expressed in the following paragraphs of its decision:
In the instant case, the claimant chose to retire and his eligibility must be determined under Section 402(b)(1) of the Unemployment Compensation Law.
Section 402(b)(1) of the Law provides that a claimant shall be ineligible for compensation for any week in which his unemployment is due
[ 30 Pa. Commw. Page 636]
to voluntarily leaving work without cause of a necessitous and compelling nature. Since the claimant voluntarily terminated his employment, the burden rests upon him to show cause of a necessitous and compelling nature for so doing. The claimant has met this burden.
In the instant case, the claimant voluntarily chose early retirement under the terms of the pension plan plus receipt of a $105 monthly phaseout allowance. The claimant was offered the opportunity to bid on 38 jobs and to bump into 63 jobs. The record reveals that the claimant was not offered a definite job; the record also indicates that some of these jobs were permanent jobs while others were temporary. Furthermore, the record reveals that had the claimant chosen to bid or bump into any of the available jobs, he would have lost the opportunity to get the $105 monthly phaseout allowance. Also, the claimant would have become the lowest man in seniority in his new department.
The factual situation in the instant case is strikingly similar to that which existed in Aluminum Company of America v. Unemployment Compensation Board of Review, 15 Pa. Commonwealth Ct. 78, 324 A.2d 854 (1974). The offer in the instant case included an entire range of mere possibilities and was a vague and tenuous proposition as was the case in Aluminum Company. The Board of Review, after a careful review of the entire record, believes that the claimant did have cause of a compelling and necessitous nature to retire under Section 402(b)(1). The Board of Review takes special note of the following language from Aluminum
[ 30 Pa. Commw. Page 637]
Company, 15 Pa. Commonwealth Ct., supra 85, 324 A.2d at 858.
'The record clearly shows that [the claimant's] decision to retire was consistent with ordinary common sense and prudence. He was offered a concrete benefit as an inducement to retire and was led to believe that he would lose that benefit if he "bumped." In contrast to the concrete benefit offered for retirement, the "bumping" option was presented as a vague and tenuous proposition which would be of short term duration.'
The Board of Review believes that the instant case is controlled by the above language from Aluminum Company.
As to the $105 payment, the Board of Review agrees with the Referee that these payments, although authorized by the pension agreement between the employer and the claimant's union, are really phaseout allowances given to the ...