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DUQUESNE LIGHT COMPANY v. COMMONWEALTH PENNSYLVANIA (10/27/81)

decided: October 27, 1981.

DUQUESNE LIGHT COMPANY, 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 Michael J. Abaray, No. B-181795.

COUNSEL

John A. Lee, with him Lawrence P. Galie, for petitioner.

Charles Donahue, Associate Counsel, with him Richard Wagner, Counsel, and Richard L. Cole, Jr., Chief Counsel, for respondent.

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

Author: Craig

[ 62 Pa. Commw. Page 254]

In this unemployment compensation appeal, the employer*fn1 questions an award of compensation to the claimant*fn2 by the Unemployment Compensation Board of Review, which reversed, upon reconsideration, its earlier order which had denied benefits on the ground of voluntary quit.*fn3

The claimant, who had worked for 29 years as a shop mechanic for the employer, retired from his position on October 30, 1979. Earlier that year on May 23, the employer had notified all employees by letter that, due to a change in federal law, the mandatory retirement age would no longer be age 65 but age 70; the letter stated that an employee not working past age 65 should file a retirement request form two months before a proposed retirement date. The claimant signed a request form on September 6, 1979 after being asked to do so by the supervisors in his office.

[ 62 Pa. Commw. Page 255]

The board concluded that the claimant had satisfied his burden of showing cause of a necessitous and compelling nature, stating, "the claimant voluntarily retired because under the existing labor-management agreement, the claimant would have had his fringe benefits frozen if he continued working after the age of 65."

The board found:

[U]nder the Labor-Management contract which had an expiration date of October 1, 1979 all benefits except the employe's wages would be frozen if the employee continued working after the age of 65. A new Union-Management agreement signed on October 8, 1979 effective October 1, 1979 did not change the freeze on benefits of those working beyond the age of 65.

Although the former collective bargaining agreement was silent concerning benefits after age 65, it incorporated the company pension plan, which provided for mandatory retirement at age 65. The employer subsequently revised the plan to adhere to the new federal law. Otherwise, the record does not clearly indicate any freeze of benefits by that agreement.

While the old agreement was in effect, during negotiations for the new one, the claimant testified that he spoke to his union representative*fn4 "to see how things would stand if I would stay after 65." The union representative told the claimant that the employer, during negotiations, had stated ...


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