Appeals from the Order of the Unemployment Compensation Board of Review in cases of In Re: Claim of John A. Frisch et al., Nos. B-149047 and B-149048; and In Re: Claim of Bernard A. Molchany et al., No. B-136042, etc.
James T. Carney, for petitioner.
Ira Silverstein, for respondents.
President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer, Rogers, Blatt and MacPhail. Judges DiSalle and Craig did not participate. Opinion by Judge Crumlish, Jr.
[ 41 Pa. Commw. Page 432]
Consolidated for our review are two appeals by the United States Steel Corporation (Employer) from separate decisions of the Unemployment Compensation Board of Review affirming payment of benefits to various claimants.*fn1 The issue for determination is whether the claimants were "indefinitely separated from their employment" pursuant to Section 404(d)(ii) of the Unemployment Compensation Law (Act)*fn2 such that benefits received during a plant shutdown would not be reduced by vacation pay.*fn3
[ 41 Pa. Commw. Page 433]
In the appeal at No. 1878 C.D. 1977, it is undisputed that Employer properly determined that a shutdown was required based on an analysis of market conditions and plant inventory. Notice was posted on plant bulletin boards informing that the probable length of the shutdown would be approximately nine weeks. Separation Notice forms (UC-45's) distributed to the employees indicated that the expected date of recall was August 15, 1976. On June 13, 1976, the employees were laid off. The plant, in fact, reopened on July 25, 1976, some three weeks earlier than expected, when an unexpected sale was made enabling Employer to terminate the shutdown earlier than originally anticipated (i.e., August 15, 1976).
Claimants received unemployment compensation benefits between June 13, 1976 and July 25, 1976 which were not reduced by vacation pay received by certain employees during some of the weeks in question. Neither the Bureau of Employment Security (Bureau), referee nor Board reduced the benefits by vacation pay concluding that the layoffs were indefinite under Section 404(d)(ii).
In the related case at No. 2400 C.D. 1977, the only substantial factual difference is that the plant did not in fact reopen on the expected date of recall because a tropical storm caused the layoff to be extended by one week as a response to market conditions occasioned by the storm.
Employer appeals Board's refusal to reduce benefits by vacation pay. We reverse.
[ 41 Pa. Commw. Page 434]
We have addressed the meaning of the phrase "indefinitely separated from his employment" in the context of Section 404(d)(ii) on two prior occasions. In United States Steel Corp. v. Unemployment Compensation Board of Review, 9 Pa. Commonwealth Ct. 206, 303 A.2d 852 (1973), there was no indication of when the plant ...