Appeals from the Orders of the Unemployment Compensation Board of Review in the cases of In Re: Claim of Terry Thomas Martina et al., No. B-192936-B; Claim of Daniel J. Phillips, No. B-192937-B; and Claim of Robert A. Yuhasz, No. B-192938-B.
Daniel R. Minnick, for petitioner.
Charles Hasson, Deputy Chief Counsel, with him, James K. Bradley, Associate Counsel, and Richard L. Cole, Jr., Chief Counsel, for respondent.
Judges Rogers, Palladino and Barbieri, sitting as a panel of three. Opinion by Judge Barbieri.
[ 83 Pa. Commw. Page 201]
Jones & Laughlin Steel, Inc. (Employer) appeals here from three orders*fn1 of the Unemployment Compensation Board of Review (Board) granting unemployment compensation benefits to sixty-one former employees of Employer's Vesta No. 4 mine. We will affirm in part and remand.
The facts in this case are undisputed. In March of 1979 Employer, pursuant to the procedures mandated by a collective bargaining agreement, selected a two-week paid vacation period extending from Saturday, July 14, 1979 until Saturday, July 28, 1979 for employees at its Vesta No. 4 mine, and paychecks for this period were subsequently issued on July 6, 1979.
[ 83 Pa. Commw. Page 202]
On Wednesday, July 11, 1979 Employer informed its employees that the Vesta No. 4 mine would be permanently closed as of July 30, 1979, and that no further production would be scheduled for the mine so that employees, in the two days preceeding the commencement of their vacation period, could apply for employment in Employer's other mines pursuant to the procedures specified in their collective bargaining agreement. Sixty-one employees subsequently filed for unemployment compensation benefits for the benefit weeks commencing July 14 and July 21, 1979, and after considering these claims the Bureau of Employment Security granted benefits. On appeal, however, the referee, finding as a fact that the vacation pay the claimants received for these two weeks exceeded their weekly benefit rate plus their partial benefit credit, concluded (1) that the claimants were rendered ineligible for benefits by the vacation pay offset provisions of Section 404(d)(ii) of the Unemployment Compensation Law (Law),*fn2 and (2) that the claimants did not fall within the ambit of the exception enunciated in Section 404(d)(ii) to that section's vacation pay offset provisions since the claimants had not been "permanently or indefinitely separated from [their] employment" during this two week period. On appeal the Board, after taking additional evidence, concluded, however, that the claimants had been "permanently or indefinitely separated from [their] employment," and hence did not have to have their benefits offset by the vacation pay they received in excess of their partial benefit credits. The Board accordingly granted benefits, and the present appeal followed.
Before this Court Employer asserts that the Board erred as a matter of law by concluding, based on the facts of this case, that the claimants were "permanently
[ 83 Pa. Commw. Page 203]
or indefinitely separated from [their] employment" within the intendment of the vacation pay offset exception expressed in Section 404(d)(ii) of the Law. With respect to one of the claimants, Terry Thomas Martina, we disagree. With respect to the remaining sixty claimants, however, we are, after carefully reviewing the record, unable to answer ...