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decided: May 13, 1985.


Appeal from the Orders of the Unemployment Compensation Board of Review in cases of In Re: Claims of Karen A. Beaver, No. B-227273; Betty A. Baughman, No. B-227274; Christine W. Yoder, No. B-227275; Marion L. Rosenberger, No. B-227276; Betty Desenberg, No. B-227277; Jean H. Myers, No. B-227278; Darlene A. Mease, No. B-227279; Betty L. Baughman, No. B-227280; Youngsun Hurley, No. B-227281; Dorothy Wehler, No. B-227282; Brenda Lee Stevens, No. B-227283; Kathy Ann Lucia, No. B-227284; Donna L. Fry, No. B-227285; Tonna L. Berrier, No. B-227286; Penny Wieland, No. B-227287; Pauline Mestlin, No. B-227288; William C. Mayers, No. B-227289; Aeng Murray, No. B-227290; Mary L. Marsh, No. B-227291; Barry Braveman, No. B-227292; Beulah Yentzer, No. B-227293; Melba Payne, No. B-227294; Dorothy L. Funk, No. B-227295; Jayne Spotts, No. B-227296; Emma Schlegal, No. B-227297; Deborah Stephens, No. B-227298; Joyce V. Westfall, No. B-227299; Elinor Osborne, No. B-227300; Vickie Gray, No. B-227301; Sandra Turner, No. B-227302; Teresa Ledger, No. B-227303; Wilbur A. Jones, No. 227304; Manh F. Bierbower, No. B-227305; Eva C. Louthian, No. B-227306, and Genevieve F. Zeiders, No. B-227307, dated February 13, 1984.


Jeffrey A. Ernico, with him, Linus E. Fenicle, Ernico & Fenicle, P.C., for petitioner.

Richard F. Faux, Associate Counsel, with him, Charles G. Hasson, Acting Deputy Chief Counsel, for respondent.

Eric J. Swan, Galfand, Berger, Senesky, Lurie & March, for Claimants.

Judges Rogers, MacPhail and Doyle, sitting as a panel of three. Opinion by Judge Doyle. Judge Williams, Jr., did not participate in the decision in this case.

Author: Doyle

[ 89 Pa. Commw. Page 253]

Iceland Products (Employer) appeals the grant of unemployment compensation benefits to thirty-five of its employees by the Unemployment Compensation Board of Review (Board). Because all thirty-five cases involve the same issue, they have been consolidated in a single appeal pursuant to Rule 512 of the Pennsylvania Rules of Appellate Procedure.

Employer does not contest any of the referee's findings of fact. All employees involved in this appeal were members of the United Steel Workers Association, Local No. 6156. The terms and conditions of their employment during the time period concerned were governed by a collective bargaining agreement between the union and the Employer with an effective date of February 21, 1983. Pursuant to this agreement, employees were entitled to between five and twenty-five days of paid vacation per year, depending upon their years of service with the company. Eligibility for vacation was conditioned on a requirement that each

[ 89 Pa. Commw. Page 254]

    employee must have worked a minimum of 1500 hours during the previous year. Vacations were permitted to be scheduled at any time throughout the calendar year, pursuant to Employer's approval. Employer reserved the option under the agreement to annually shut down all or part of the plant for a period up to two weeks for vacation purposes, provided thirty days notice was given to employees. On May 17, 1983, Employer posted notice on the company bulletin board that the plant would be closed from June 20 through July 1, 1983, for vacation and maintenance. On May 18, Employer posted another notice informing employees that they did not have to schedule their vacation during the shutdown, but if they had vacation days available and elected not to use them, they would be ineligible for unemployment compensation benefits during the two week shutdown.*fn1

Employees who applied for and received unemployment compensation benefits during the shutdown fell into three categories: 1) those who had not yet accumulated any vacation time, 2) those who had already used up all their available vacation time, and 3) those who had available vacation time but chose to save it for use later in the year. Employer is apparently contesting only the receipt of benefits by the third category of employees, on the basis that these people were "unemployed" through their own fault since they could have received vacation pay during the shutdown had they requested it.*fn2

[ 89 Pa. Commw. Page 255]

The initial burden of proving eligibility for benefits falls upon an employee. Schuster v. Unemployment Compensation Board of Review, 69 Pa. Commonwealth Ct. 537, 451 A.2d 1059 (1982). In the instant case, this means that the employees must show that the shutdown period was improperly designated by the employer as vacation time, and that the employees were in fact unemployed during the shutdown period. Our scope of review in an unemployment compensation case where, as here, the party with the burden of proof has prevailed before the Board is limited to a determination of whether an error of law was committed or a necessary finding of fact is not supported by substantial evidence in the record. Huyett v. Unemployment Compensation Board of Review, 83 Pa. Commonwealth Ct. 447, 477 A.2d 900 (1984).

Section 4(u) of the Unemployment Compensation Law (Law), Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. ยง 753(u), provides in pertinent part:

[A]n employe who is unemployed during a plant shutdown for vacation purposes shall not be deemed ineligible for compensation merely by reason of the fact that he or his collective bargaining agents agreed to the vacation.

No employe shall be deemed eligible for compensation during a plant shutdown for vacation who receives directly or indirectly any funds ...

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