Appeal from the Order of the Unemployment Compensation Board of Review, in case of Mike Czarnecki, B-245518.
Joseph P. Green, Lee, Martin, Green & Reiter, for petitioner.
Gary L. Kelley, Assistant Counsel, with him, Clifford F. Blaze, Deputy Chief Counsel, for respondent.
Judges MacPhail and Barry, and Senior Judge Narick, sitting as a panel of three. Opinion by Judge Barry. Senior Judge Narick dissents.
[ 110 Pa. Commw. Page 94]
Centre Area Transportation Authority (CATA) appeals from an order of the Unemployment Compensation Board of Review (Board) affirming a referee's order to reverse a determination by the Office of Employment Security (OES) to deny Michael T. Czarnecki (claimant) benefits under Section 402(a) of the Unemployment Compensation Law (Law), Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(a) (failure to accept suitable work).*fn1
[ 110 Pa. Commw. Page 95]
The claimant was employed as a full-time bus driver for CATA. Effective May 10, 1985, the claimant's hours were reduced to 2.15 hours per day or 10.7 hours per week due to a decrease in manpower requirements. A temporary route was established by CATA consisting of 7.65 hours per day which would continue through June 13, 1985. Pursuant to its collective bargaining agreement, CATA posted a memorandum inviting all bus drivers to attend a bid meeting on May 9, 1985, to submit bids on the temporary position. The claimant chose not to bid on the temporary position and it was subsequently awarded to a driver with less seniority.
The referee reversed OES' denial of benefits and found that "[t]he employer never specifically offered this position to the claimant and only indicated those interested in the job could bid on it."*fn2 CATA appealed the referee's decision. This appeal followed. We reverse.
Our scope of review is limited to a determination of whether an error of law was committed, whether the necessary findings are supported by substantial evidence, or whether constitutional rights were violated. Pacini v. Unemployment Compensation Board of Review, 102 Pa. Commonwealth Ct. 355, 518 A.2d 606 (1986).
In Philadelphia Newspapers, Inc. v. Unemployment Compensation Board of Review, 57 Pa. Commonwealth Ct. 639, 426 A.2d 1289 (1981), as here, benefits were awarded despite an employer's objection that the claimant failed to accept suitable work. This court affirmed the award reasoning that the posting of job openings could not be classified as offers of employment because they created no power of acceptance in the claimant or any other employee.*fn3
[ 110 Pa. Commw. Page 96]
The facts in this case must lead us to a different conclusion. In Philadelphia Newspapers, in finding that the posting of job openings did not create a power of acceptance in the claimant we also recognized that the employer had "clearly reserved the right to evaluate the applicant's qualifications before proffering any position." 57 Pa. Commonwealth Ct. at 641, 426 A.2d at 1290. In the present case, the employer specifically bargained away that right. Section 702 of the collective bargaining agreement in force here provides, "Whenever a position is permanently vacant, if it is to be filled permanently, it shall be promptly filled by bidding, by seniority." (Emphasis added.) Therefore, the posting of the job opening in ...