Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Randolph S. Hughes, Jr., No. B-165474-B.
Edward Sparkman, with him Harold I. Goodman, Alan L. Phillips, of counsel, Stuart Wilder, for petitioner.
John Kupchinsky, with him Daniel R. Schuckers, Assistant Attorneys General, Richard Wagner, Chief Counsel and Edward G. Biester, Jr., Attorney General, for respondent.
Judges Wilkinson, Jr., Blatt and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail.
[ 51 Pa. Commw. Page 450]
Randolph S. Hughes, Jr. (Claimant) appeals to this Court from the decision of the Unemployment Compensation Board of Review (Board) which affirmed a denial of unemployment compensation benefits to Claimant on the basis that he voluntarily left his employment without cause of a necessitous and compelling nature and, therefore, was ineligible for benefits pursuant to Section 402(b)(1) of the Unemployment Compensation Law, Act of December 5, 1936, Second Ex. Sess., P.L.  2897, as amended, 43 P.S. § 802(b)(1). Claimant raises two issues for our consideration: whether the Board erred in determining (1) that there was work available to him during the weeks ending October 8 and 15, 1977 and (2) that he voluntarily left his employment without cause of a necessitous and compelling nature.
In unemployment compensation cases, the claimant has the burden of proving eligibility for benefits. Spong v. Unemployment Compensation Board of Review, 44 Pa. Commonwealth Ct. 560, 563, 404 A.2d 444, 446 (1979); Veneski v. Unemployment Compensation Board of Review, 29 Pa. Commonwealth Ct. 154, 156, 370 A.2d 382, 384 (1977). Where, as here, the person with the burden of proof does not prevail before the Board, our scope of review is limited to determining whether the Board's findings are consistent with each other and with the Board's conclusions of law and its order, and whether they can be sustained without a capricious disregard of competent evidence. Baird v. Unemployment Compensation Board of Review, 30 Pa. Commonwealth Ct. 118, 121,
[ 51 Pa. Commw. Page 451372]
A.2d 1254, 1257 (1977). If the Board makes findings of fact necessary to support its adjudication which are not supported by substantial evidence, we must set aside the Board's order. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704. We find that the Board erred in determining that work was available to Claimant during the weeks ending October 8 and 15. Because there was no competent evidence on the record to indicate when work was and was not available to Claimant, we must reverse the order of the Board and remand this case for further proceedings concerning the availability of work issue.
Claimant was last employed as a cherry picker operator by Power Piping Company (Power) on September 1, 1977. He had worked for Power for nine days and it is undisputed that he could have worked at least one more day. Claimant was a member of Local Union 542, International Union of Operating Engineers (Union) through which he had obtained his employment with Power. The Union kept a list of unemployed workers whom it referred for available job openings. Persons were ranked on the list by the length of time they had been unemployed. If a Union member on the list was sent to a job, worked ten days or more, and subsequently became unemployed, his or her name was placed at the bottom of the Union's list and the member became available for another job assignment only when his or her name reached the top of the list. If the Union member worked fewer than ten days, however, his or her name stayed at the top of the list and the member was eligible immediately for another job placement. In September, 1977, when Claimant left employment with Power, the Union's job list was seventeen pages long.
Claimant admits that he left his employment with Power on September 1, 1977. His reason for leaving
[ 51 Pa. Commw. Page 452]
was his belief that Power would have had no work for him after September 2. It was to his advantage, he argued, to lose one day's work and remain at the top of the Union list rather than to work only ...