Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

THOMAS C. LEVAN v. COMMONWEALTH PENNSYLVANIA (03/18/87)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: March 18, 1987.

THOMAS C. LEVAN, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT

Appeal from the Order of the Unemployment Compensation Board of Review, in case of In Re: Claim of Thomas C. Levan, No. B-221665-A.

COUNSEL

Louis M. Shucker, for petitioner.

Charles D. Donahue, Assistant Counsel, with him, Samuel H. Lewis, Assistant Counsel, and Clifford F. Blaze, Deputy Chief Counsel, for respondent.

Judges MacPhail and Palladino, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Palladino.

Author: Palladino

[ 105 Pa. Commw. Page 13]

Thomas C. Levan (Petitioner) appeals from an order of the Unemployment Compensation Board of Review (Board) affirming the decision of the referee to deny Petitioner benefits under Section 402(a) of the Pennsylvania Unemployment Compensation Law (Law).*fn1 We affirm.

This case was previously before this Court, Levan v. Unemployment Compensation Board of Review, 91 Pa. Commonwealth Ct. 507, 498 A.2d 987 (1985) (Levan I). Petitioner had been laid off from his job with Knoll International (employer) and became eligible for unemployment compensation benefits. Twice he was recalled to work by employer. On both occasions he refused the position offered, claiming the recalls violated employer's recall policy. As a result, his benefits were terminated by the Office of Employment Security (OES) for refusing suitable work.

Petitioner appealed. The referee and the Board affirmed the termination of benefits on the basis that the jobs offered to Petitioner were suitable and that he did not have "good cause" to refuse. In the absence of a collective bargaining agreement, the Board concluded, "good cause" would not exist even if employer had violated its recall and seniority policies.

This Court affirmed the Board's conclusion that the work offered Petitioner was suitable. However, the Court, based on the 1980 amendment to Section 402(a) of the Law,*fn2 held that "if a claimant is recalled in violation

[ 105 Pa. Commw. Page 14]

    of an established employer policy concerning seniority and recalls, and consequently would not be required to accept the recall offer, the Claimant would be eligible for benefits." Levan I, 91 Pa. Commonwealth Ct. at 512, 498 A.2d at 989. The case was remanded to the Board to make findings on (1) whether there was an established employer policy in existence and (2) whether it had been violated.

On remand, the Board vacated its prior decision and concluded that Petitioner was ineligible for benefits under Section 402(a) based on the following pertinent findings:

5. On January 24, 1983 the employer instituted a recall policy known as Recall and Job Openings.

6. When the employer recalled the claimant, it complied with this recall policy.

7. The claimant did not have any good reasons not to accept suitable job offers.

It is from this denial of benefits that Petitioner is appealing. Petitioner contends that the Board's finding that employer complied with its recall policy is not supported by substantial evidence and is contrary to law.*fn3

Petitioner first asserts that the referee and the Board improperly considered both of his refusals of job offers after recall because OES terminated his benefits based on only one refusal.*fn4 Petitioner did not object at the hearing to the introduction of evidence on the refusals

[ 105 Pa. Commw. Page 15]

    associated with both recalls. He raises the issue for the first time before this Court. Therefore, he has waived the right to have that issue considered. Pa. R.A.P. 1551(a); Gillooly v. Unemployment Compensation Board of Review, 76 Pa. Commonwealth Ct. 20, 462 A.2d 958 (1983).

Petitioner next asserts that since employer gave "no coherent explanation" for why Petitioner was offered a lower grade level job than a less senior employee recalled on the same day, Petitioner's testimony that he was told it was "employer prerogative" must be accepted. This, Petitioner contends, constitutes a violation of employer's written policy and good cause for refusing.

The burden is on Petitioner to establish good cause. Davis v. Unemployment Compensation Board of Review, 71 Pa. Commonwealth Ct. 585, 455 A.2d 747 (1983). Employer's policy contains no directions on how available jobs are to be assigned to those recalled on the same day.*fn5 Petitioner does not contend that individuals less senior than he were recalled prior to him. Therefore, even if Employer did offer a less senior employee a higher grade level job than was offered Petitioner, it would not be a violation of employer's written policy. The Board's finding that employer complied with his recall

[ 105 Pa. Commw. Page 16]

    and seniority policy is supported by substantial evidence.

We affirm.

Order

And Now, March 18, 1987, the order of the Unemployment Compensation Board of Review in the above-captioned matter is affirmed.

Disposition

Affirmed.


Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.