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ARLENE HOFFMAN v. COMMONWEALTH PENNSYLVANIA (02/07/86)

decided: February 7, 1986.

ARLENE HOFFMAN, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT. MURIEL KINDERMAN, PETITIONER V. COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT. EVELYN DICE, ET AL., PETITIONERS V. COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT



Appeals from the Orders of the Unemployment Compensation Board of Review in cases of In Re: Claims of Muriel Kinderman, No. B-228628, Arlene Hoffman, No. B-228629, Evelyn L. Dice, No. B-236530, Phyllis I. Snyder, No. B-236531, Alice J. Fritz, No. B-236532, Myrna B. Shatzer, No. B-236533, Mabel R. Peiffer, No. B-236534, Larue A. Sheaffer, No. B-236535, and Naomi T. Baker, No. B-236536.

COUNSEL

Jerome H. Gerber, with him, Irwin W. Aronson, Handler, Gerber, Johnston, Strokoff & Cowden, for petitioners.

Charles D. Donahue, Associate Counsel, with him, Charles G. Hasson, Acting Deputy Chief Counsel, for respondent.

Judges Colins and Palladino, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Palladino. Judge Colins concurs in the result only. Dissenting Opinion by Senior Judge Kalish.

Author: Palladino

[ 95 Pa. Commw. Page 57]

The above-named cases are consolidated because they involve a common issue. In cases No. 1144 C.D. 1984 and No. 1145 C.D. 1984, the Claimants are Arlene Hoffman and Muriel Kinderman, respectively, who are employed by Deborah Dress, Inc.*fn1 In case No. 49 C.D. 1985, the Claimants are Evelyn L. Dice, Phyllis F. Snyder, Alice J. Fritz, Myrna B. Shatzer, Mabel R. Peiffer, Larue A. Sheaffer, and Naomi T. Baker, who are employed by Nicky Lee Sportswear. Claimants Hoffman and Kinderman are seeking unemployment compensation benefits for a one-week period ending July 10, 1982, during which time their employer's plant was shut down. Claimant Dice and the other Claimants named in 49 C.D. 1985 are seeking benefits for a similar shutdown of their employer's plant, which occurred during the first week of July, 1984. The Unemployment Compensation Board of Review (Board) determined that the Claimants are ineligible for benefits pursuant to Section 404(d)(ii) of the Unemployment Compensation Law*fn2 (Law), because vacation

[ 95 Pa. Commw. Page 58]

    pay received by them exceeded their weekly benefit rate. We affirm the decisions and orders of the Board.

The Claimants are members of the International Ladies Garment Workers Union (Union) and their employers belong to the Northeast Apparel Association, Inc. (Association). The terms and conditions of the Claimants' employment are governed by a collective bargaining agreement between the Union and the Association. One term of the agreement specifies that employer members of the Association may not designate a vacation period, or shut down their factories for vacation purposes, without having obtained the prior written consent of the Union.*fn3

[ 95 Pa. Commw. Page 59]

On June 16, 1982, the Association informed its employer members that their plants would close for one week in July of 1982, for vacation purposes. In accordance with that directive, Deborah Dress scheduled the claim week at issue as a vacation period and posted notices informing its employees of the plant shut down. The designation of the claim week at issue as a vacation period was accomplished without the consent of the Union. In June of 1982, Claimants Hoffman and Kinderman each received $258.38 from the Union's Health and Welfare Fund, which was applied by Deborah Dress to the shutdown period designated for the claim week ending July 10, 1982. The amount received by the Claimants was greater than the total weekly unemployment compensation benefit rate to which they would have been entitled. Claimants Hoffman and Kinderman also received holiday pay for the Fourth of July in the amount of $38.95 for each Claimant. In the case of Deborah Dress, its manufacturer, also known as a "jobber", contributes an agreed upon, fixed percentage to the Health and Welfare Fund, a portion of which fund is used to pay employees during vacation periods.

On June 14, 1984, Nicky Lee Sportswear scheduled the claim week ending July 7, 1984 as a vacation period, and posted notices informing its employees that the plant would be shut down for vacation purposes during the first week of July, 1984. The decision to shut down the plant for vacation was made without the consent of the Union. In June of 1984, Claimant Dice and the other Claimants named in 49 C.D. 1985 each received a payment from the Union's

[ 95 Pa. Commw. Page 60]

Health and Welfare Fund in an amount in excess of their total weekly benefit rate and partial benefit credit, which amount was applied by Nicky Lee Sportswear to the shutdown period designated for the claim week ending July 7, 1984. The Claimants also received holiday pay for the Fourth of July, 1984 holiday. Nicky Lee Sportswear contributes a fixed portion of its employee wages to the Health and Welfare Fund.

In cases No. 1144 C.D. 1984 and No. 1145 C.D. 1984, the Board applied the Office of Employment Security (OES) regulations, as set forth in 34 Pa. Code §§ 65.91-65.96, and determined that Deborah Dress had properly designated the shutdown in July of 1982 as a vacation period. Because vacation pay allocated to the vacation period exceeded the Claimant's weekly benefit rate, the Board found that the Claimants were thereby ineligible for unemployment compensation benefits. In so holding, the Board noted that it was not bound by the provisions of any agreements between the parties, and that an unemployment compensation proceeding is not the place to adjudicate alleged violations of a collective bargaining agreement.

In case No. 49 C.D. 1985, the referee determined that, on what were substantially the same facts, the Board's decision regarding the appeals of Claimants Hoffman and Kinderman was controlling. Accordingly, the referee held that Claimant Dice and the other Claimants were ineligible for benefits pursuant to Section 404(d)(ii) of the Law. The decision of the referee was thereafter affirmed by the Board.

On appeal to this Court, the Claimants contend that the Board erred in determining that payments from the Union's Health and Welfare Fund were properly allocated as vacation pay to the shutdown period. Specifically, the Claimants argue that the payments in question should not be considered as

[ 95 Pa. Commw. Page 61]

    vacation pay, because the employers' designation of the shutdown as a vacation was accomplished without the consent of the Union and was therefore violative of ...


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