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CARL COLTERYAHN DAIRY v. COMMONWEALTH PENNSYLVANIA (10/03/79)

decided: October 3, 1979.

CARL COLTERYAHN DAIRY, INC., PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT



Appeals from the Orders of the Unemployment Compensation Board of Review in cases of In Re: Claim of Dominic V. Fanzo, No. B-146446; William L. McMahon, No. B-146447; Harry Pferdehirt, No. B-146448; Wesley P. Cochran, Jr., No. B-146449; Robert K. Toward, No. B-146450; and Alexander Belako, No. B-146451.

COUNSEL

Jane A. Lewis, with her Charles R. Volk, Martin J. Saunders, and Thorp, Reed & Armstrong, for petitioner.

GuruJodha Singh Khalsa, Assistant Attorney General, with him Reese F. Couch, Assistant Attorney General, and Gerald Gornish, Acting Attorney General, for respondent.

Judges Crumlish, Jr., Mencer and Craig, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 46 Pa. Commw. Page 321]

The Unemployment Compensation Board of Review (Board), reversing a referee's decision, determined that claimants were eligible for benefits under the provisions of Section 402(a) of the Pennsylvania Unemployment Compensation Law,*fn1 43 P.S. ยง 802(a), on the ground that, after being laid off, their failure to accept work offered to them by a prospective new employer was based on good cause.

Carl Colteryahn Dairy, Inc., claimants' original employer, appeals from the Board's decision.

Claimants were last employed by Colteryahn as driver-salesmen at a final weekly salary of approximately $275. On September 22, 1976, that employer informed claimants that because of economic pressures, their services would be terminated September 30, 1976. On that day, employer told claimants that Schneider Dairy was interested in hiring claimants in their same capacity at the same salary, beginning October 1, 1976.

The Board's finding that, as a prerequisite to employment with Schneider Dairy, claimants were required to take a cut in seniority and vacation time by one-half, is not wholly accurate because claimants' own testimony indicates that their union contract provided for the half-cut in seniority. However, Schneider Dairy's offer of employment did propose to cut claimants' vacation entitlement for the first year of employment, allegedly not in accordance with their union contract.

The referee and Board also found that, as a prerequisite to employment, Schneider Dairy required

[ 46 Pa. Commw. Page 322]

    each claimant to sign a statement to the effect that he would not initiate any grievance against Schneider Dairy under the applicable union agreement. The record does not support this finding. The record is somewhat confusing, and our review is hampered because a copy of the waiver agreement was not submitted in evidence, but claimants' testimony supports a finding that the waiver of the grievance proceeding was only with respect to the cut in vacation time.*fn2

The referee held that claimants' failure to accept employment with Schneider Dairy indicated a lack of good faith, and therefore the claimants were ineligible to receive unemployment compensation benefits for failure to ...


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