Appeal from the Order of the Unemployment Compensation Board of Review in the case of In Re: Claim of Evelyn Blocker, No. B-214249.
Alan M. Lerner, with him, Barry R. Elson and Jeffrey Ivan Pasek, Cohen, Shapiro, Polisher, Shiekman and Cohen, for petitioners.
Richard F. Faux, Associate Counsel, with him, Richard L. Cole, Jr., Chief Counsel, for respondent.
Judges MacPhail, Colins and Barbieri, sitting as a panel of three. Opinion by Judge MacPhail. Judge Colins concurs in the result only.
[ 83 Pa. Commw. Page 399]
Robert Bruce, Inc. (Employer) appeals here from a decision of the Unemployment Compensation Board of Review (Board) which awarded compensation benefits to Evelyn Blocker (Claimant).
The findings of fact made by the referee and adopted by the Board are not in dispute. Instead, the Employer asks us to decide as a matter of law*fn1 that an employee who was unemployed as a result of a temporary plant shutdown, and who did not receive vacation pay during the period of unemployment because of a violation of a labor-management agreement regarding said vacation pay, is therefore ineligible for unemployment compensation benefits because of willful misconduct. This we cannot do.
The Board affirmed the referee's finding that Claimant was unemployed for one week while the Employer's plant was shut down. Section 402(e) of the Unemployment Compensation Law (Law), Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e), provides that "[a]n employe shall be ineligible for compensation for any week in which his unemployment is due to his discharge or temporary suspension from work for willful
[ 83 Pa. Commw. Page 400]
misconduct connected with his work. . . ." Claimant's unemployment having occurred because of a plant shutdown, the issue of willful misconduct does not arise. We decline to hold that non-receipt of remuneration during a plant shutdown falls within the ambit of Section 402(e) of the Law.
The Employer urges that when we read Section 402(e) of the Law in conjunction with the definition of "unemployed" in Section 4(u), 43 P.S. § 753(u), we must find that non-receipt of remuneration because of willful misconduct makes an employee ineligible for unemployment compensation benefits. The difficulty with this argument is that the Law clearly states that Section 402(e) ineligibility rests upon the employee having been discharged or temporarily suspended from work for willful misconduct. The Law simply does not provide for ineligibility where willful misconduct results in non-receipt of vacation pay while a plant is shut down. Assuming this is an oversight which should be remedied, the legislature must act and not this Court. The Board therefore did not err in failing to rule upon whether Claimant was ineligible under Section 402(e) of the Law.
The Board also affirmed the referee's decision that Claimant was not ineligible under Section 404(d)(ii) of the Law, 43 P.S. § 804(d)(ii). An eligible employee who is unemployed during a plant shutdown may receive unemployment compensation at his weekly benefit rate less vacation pay, if any, which is in excess of his partial benefit credit. Dennis v. Unemployment Compensation Board of Review, 55 Pa. Commonwealth Ct. 215, 423 A.2d 458 (1980).
Regardless of her possible violation of a labor-management agreement, the fact remains that Claimant received no remuneration during the week in question and ...