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BARBARA S. SMITH v. COMMONWEALTH PENNSYLVANIA (09/04/81)

decided: September 4, 1981.

BARBARA S. SMITH, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT



Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Barbara S. Smith, No. B-179872.

COUNSEL

Morrison B. Williams, Rudisill, Guthrie & Williams, for petitioner.

William Kennedy, Assistant Attorney General, with him Steven R. Marcuse, Assistant Attorney General, Richard Wagner, Chief Counsel, and Harvey Bartle, III, Acting Attorney General, for respondent.

President Judge Crumlish and Judges Blatt and MacPhail, sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 61 Pa. Commw. Page 524]

The petitioner, Barbara S. Smith, appeals a decision of the Unemployment Compensation Board of Review (Board) which denied benefits to her on the ground that she voluntarily terminated her employment without cause of a necessitous and compelling nature under Section 402(b)(1) of the Unemployment Compensation Law (Law), Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(b)(1).

The petitioner had been employed on the clerical staff of the YWCA for 11 years when she was informed by letter that, due to a reorganization of the staff, her position was being eliminated, but that she could reapply for another clerical position at the same rate of pay. She declined the offer of a new position because she believed that her workload would be increased and she did not feel that she was capable of handling additional responsibilities. Her application for benefits was denied by the Office of Employment Security and the referee and, after a remand for the taking of additional evidence, the Board affirmed the referee's decision.

[ 61 Pa. Commw. Page 525]

The petitioner contends that she had compelling cause to refuse the proffered new employment because the work was not suitable in that her workload would have been doubled. She said that the new job would have entailed duties which had previously been performed by two full-time staff persons.

For purposes of establishing whether or not an employee had necessitous cause for terminating employment, the question of the suitability of work is laid out in Section 4(t) of the Law, 43 P.S. § 753(t):

(t) 'Suitable Work' means all work which the employe is capable of performing. In determining whether or not any work is suitable for an individual, the department shall consider the degree of risk involved to his health, safety and morals, his physical fitness, prior training and experience, and the distance of the available work from his residence. The department shall also consider among other factors the length of time he has been unemployed and the reasons therefor, the prospect of obtaining local work in his customary profession, his previous earnings, the prevailing condition of the labor market generally and particularly in his usual trade or occupation, and the permanency of his residence.

In the present case, the Board found that the appellant's work-week in the new position would increase from 35 to 40 hours, that the rate of pay would be unchanged and that she had significant experience to handle the clerical work here involved. The Board concluded, after weighing all the factors, that the new position was suitable employment for the appellant.

The Board also found that the appellant did not make a good faith effort to preserve the employment relationship because she failed to accept the clerical position ...


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