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ROBERT DENNIS ET AL. v. COMMONWEALTH PENNSYLVANIA (12/10/80)

decided: December 10, 1980.

ROBERT DENNIS ET AL., PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW AND CONGOLEUM CORPORATION, RESPONDENTS



Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Robert C. Dennis, No. B-174388.

COUNSEL

Marc S. Jacobs, Galfand, Berger, Senesky, Lurie & March, for petitioners.

William J. Kennedy, Assistant Attorney General, with him Richard Wagner, Chief Counsel, and Harvey Bartle, III, Acting Attorney General, for respondents.

Judges Craig, MacPhail and Williams, Jr., sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 55 Pa. Commw. Page 217]

This is an appeal by Robert Dennis (Claimant), a token claimant,*fn1 from an order of the Unemployment Compensation Board of Review (Board) affirming the decision of a referee which disallowed unemployment compensation benefits previously granted to Claimant, for the week ending July 22, 1978, by the Bureau (now Office) of Employment Security (Bureau). For the reasons which follow, we reverse and remand.

The basic fact situation applicable to all claimants is as follows: Employer, Congoleum Corporation, posted a notice in its plant on April 20, 1978 to the effect that a summer plant shutdown would be scheduled for a two week period beginning on July 17 and ending on July 30, 1978. Testimony contained in the record indicates that approximately one-half of the plant employees continued to work during the shutdown, performing in large part maintenance and repair work. The claimants were not notified until Friday, July 14 that they were not scheduled to work during the shutdown period which began the following Monday, July 17.*fn2 Each of the claimants had received varying amounts of vacation pay earlier in the year but had

[ 55 Pa. Commw. Page 218]

    chosen not to take vacation time off. This unusual situation resulted from a provision in the collective bargaining agreement reached by the Employer and the employees' union*fn3 which allowed an employee, with the agreement of Plant Management, to continue to work, forfeit vacation time off, and thereby receive vacation pay in addition to regular wages.*fn4 Claimants did not receive additional remuneration for the shutdown period. In light of the fact that claimants had elected not to take vacation time off when they received their pay, Employer allocated the pay received earlier in the year to the time during the plant shutdown when claimants were not scheduled to work, thus disqualifying claimants from unemployment compensation benefits. It is the propriety of these allocations which is at issue here.

In his decision the referee ruled, inter alia, that the plant shutdown was for vacation purposes and that the allocation of vacation pay received by claimants to the July shutdown period was proper pursuant to Sections 4(u) and 404(d)(ii) of the Unemployment Compensation Law (Law), Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §§ 753(u) and 804(d)(ii). The issue presented for our consideration is whether the plant shutdown was, as to the claimants, for vacation purposes thereby rendering proper the allocation of vacation pay to the shutdown period.

[ 55 Pa. Commw. Page 219]

In cases of this nature where the party with the burden of proof has not prevailed before the Board, our scope of review is limited to a determination of whether the facts as found by the Board can be sustained without a capricious disregard of competent evidence. Houff Transfer, Inc. v. Unemployment Compensation Board of Review, 40 Pa. Commonwealth Ct. 238, 397 A.2d 42 (1979). Legal conclusions drawn from findings of fact are, of course, fully reviewable by our Court. Eckenrode v. Unemployment Compensation Board of Review, 37 Pa. Commonwealth Ct. 458, 390 A.2d 886 (1978).

Two provisions of the Law which are of significance to the instant case are Sections 4(u) and 404(d)(ii), 43 P.S. §§ 753(u) and 804(d)(ii). Section 4(u) provides in pertinent part:

     an employe who is unemployed during a plant shutdown for vacation purposes shall not be deemed ineligible for compensation merely by reason of the fact that he or his ...


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