Appeals from the Orders of the Unemployment Compensation Board of Review in cases of In re: Claim of Anna Sedonic, No. B-195803-B; Claim of Sally Kay, No. B-195804-B; Claim of Hilda Frisch, No. B-195801-B; and Claim of Anna Filipovits, No. B-195802-B.
Charles W. Johnston, Handler and Gerber, P.C., for petitioners.
Charles Donahue, Associate Counsel, with him Richard L. Cole, Jr., Chief Counsel, for respondent.
Judges Rogers, Blatt and Doyle, sitting as a panel of three. Opinion by Judge Rogers.
We have consolidated for disposition the appeals of four unemployment compensation claimants from separate orders of the Unemployment Compensation Board of Review (board) upholding a referee's decision that the benefits payable to the claimants during the week of December 21 to December 27 should be reduced by the amount of vacation pay received by the petitioners for that week. The referee's decision was based on Section 404(d)(ii) of the Act,*fn1 43 P.S. § 804(d)(ii) which provides pertinently:
(d) Notwithstanding any other provisions of this section each eligible employe who is unemployed with respect to any week. . . shall be
paid, with respect to such week, compensation in an amount equal to his weekly benefit rate less the total of . . . (ii) vacation pay, if any, which is in excess of his partial benefit credit, except when paid to an employe who is permanently or indefinitely separated from his employment. . . . (Emphasis added.)
The issue is that of whether or not the claimants were "indefinitely separated from their employment" within the meaning of Section 404(d)(ii) of the Act. If they were indefinitely separated the benefits would not be reduced by vacation pay. If they were not indefinitely separated there would be a reduction for vacation pay.
Each of the claimants was laid off on November 12, 1980 for lack of work. The employer did not give the claimants a recall date when they were laid off. It told them that they would be informed later of a date when they could return to work. On the employer's separation notice form submitted to the Office of Employment Security, the employer noted on the form that the claimants' unemployment was temporary and in the space provided for the expected date of recall, the employer left blanks. The claimants, in accordance with company policy for temporary layoffs, were told to call in every Friday during the layoff to ask whether a recall date had been established.
The employer notified the claimants on December 19, 1980, that they were being recalled to work effective December 29, 1980, the Monday after their vacation week. The claimants were recalled due to an increase in the employer's work orders. The claimants did return to work pursuant to the recall.
The week of Sunday, December 21, 1980, through Saturday, December 27, 1980, was a regularly scheduled vacation period established by the collective bargaining ...