Appeal from the Order of the Unemployment Compensation Board of Review in the case of In Re: Claim of James E. Link, No. B-183876.
Clarence D. Bell, Jr., for petitioner.
Charles Donahue, Associate Counsel, with him Richard L. Cole, Jr., Chief Counsel, for respondent.
President Judge Crumlish and Judges Rogers and Doyle, sitting as a panel of three. Opinion by Judge Doyle. Judge Mencer did not participate in the decision in this case.
[ 67 Pa. Commw. Page 240]
This is an appeal from a decision of the Unemployment Compensation Board of Review (Board) which denied benefits and ordered recoupment of compensation paid to James E. Link (Claimant). For the reasons which follow, we reverse and remand.
Claimant was employed by Baldt, Incorporated (Employer) for over twenty-six (26) years prior to his final day of work on September 14, 1979. Pursuant to the Labor-Management Agreement between Claimant's union and Employer, which established normal retirement at age sixty-five (65), Claimant initiated the retirement procedure on or about June 5, 1979. Subsequently, on or about September 10, 1979 (four days before the retirement became effective) Ms.
[ 67 Pa. Commw. Page 241]
Pluta, a personnel clerk, informed Claimant, for the first time, that a "change in the law" permitted Claimant to continue his employment to age seventy (70). Since Ms. Pluta was unable to explain the effect of this new law upon the collective bargaining agreement, Claimant sought advice from his union. The union representative assured Claimant that the agreement was valid, and, therefore, employees must retire upon reaching the age of sixty-five (65). Based on this advice, Claimant completed the procedure and entered retirement on September 14, 1979.
Claimant filed an application to receive unemployment compensation benefits, alleging that his mandatory retirement constituted a "necessitous and compelling reason." Employer, however, contended that Claimant's retirement was voluntary since a change in federal law now prohibited the mandatory retirement of persons until age seventy (70). Following a hearing, the referee denied benefits finding that Claimant's retirement was voluntary. This appeal was brought after the Board affirmed the order of the referee.
Claimant's application for benefits was denied because the Board found that his retirement was not mandatory. The Board was convinced that the Employer's comment regarding a "change in the law" constituted sufficient notice that Claimant could continue his employment. We disagree. Although cursory review of the facts herein might result in a decision affirming the Board, the record reveals, upon close inspection, that Claimant was ignorant of his right to continue his employment beyond the age of sixty-five (65).
The Age Discrimination in Employment Act Amendments of 1978 (Act)*fn1 ...