Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Richard W. Behrens, No. B-206410.
Richard L. Bush, for petitioner.
Richard F. Faux, Associate Counsel, with him, Richard L. Cole, Jr., Chief Counsel, for respondent.
Judges Williams, Jr., Barry and Colins, sitting as a panel of three. Opinion by Judge Williams, Jr.
[ 83 Pa. Commw. Page 498]
The Unemployment Compensation Board of Review (Board) reversed a referee's decision reducing benefits granted to Richard H. Behrens (claimant) by vacation pay received by claimant during the compensable week ending January 9, 1982 and Roadway Express, Inc. (employer), appealed. The issue for determination is whether claimant was "indefinitely separated from his employment" within the meaning of Section 404(d)(ii) of the Unemployment Compensation Law (Law)*fn1 so that benefits received would not be reduced by vacation pay.*fn2
Claimant was employed by Roadway Express, Inc. Claimant's last day of work was December 13, 1981 after which date claimant was placed on employer's regular call-board status but was not on lay-off status.*fn3 Claimant had not worked since December 13, 1981 due to a lack of work. Claimant was given vacation
[ 83 Pa. Commw. Page 499]
by the employer from December 22, 1981 through January 4, 1982. The employer's work week is seven days, beginning on Tuesday and ending the following Monday, and claimant's vacation pay was pro-rated over the seven-day work week.*fn4 For the compensable week ending January 9, 1982, claimant received vacation pay amounting to $163.92.*fn5
Following the vacation period, claimant re-opened his unemployment claim effective January 3, 1982 and the Office of Employment Security (OES) approved benefits without a deduction for vacation pay. The employer appealed and, after a hearing, the referee reversed the OES determination holding that claimant was not "indefinitely separated from his employment" and that claimant's benefits must be reduced by the vacation pay received in excess of the partial benefit credit under Section 404(d)(ii) of the Law. Claimant appealed the referee's decision and the Board reversed, granting claimant full benefits without deduction for vacation pay. Employer petitions for review by this Court.
The employer argues that the Board's finding of fact stating claimant had no specific or anticipated date of recall is not supported by substantial evidence and that the Board's conclusion of law cannot be sustained without capricious disregard of the evidence.
The record contains substantial evidence to support the Board's finding of ...