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RICHARD L. TURTZER v. COMMONWEALTH PENNSYLVANIA (12/10/87)

decided: December 10, 1987.

RICHARD L. TURTZER, ET AL., PETITIONERS
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 Richard L. Turtzer (Token Claimant), No. B-219529-B.

COUNSEL

Daniel W. Cooper, Cooper, LePore & Dreeland, for petitioners.

Jonathan Zorach, Assistant Counsel, with him, Clifford F. Blaze, Deputy Chief Counsel, for respondent.

Judges Craig and Barry, and Senior Judge Narick, sitting as a panel of three. Opinion by Judge Barry.

Author: Barry

[ 111 Pa. Commw. Page 550]

This is an appeal brought by Richard L. Turtzer as the representative claimant for approximately 1000 employees of Volkswagen of America*fn1 from a decision of the Unemployment Compensation Board of Review (Board) affirming a referee's decision that the Office of Employment Security (OES) correctly determined Turtzer's benefit year.

This case was previously before this Court on the issue of whether Turtzer had mounted a collateral attack on the assignment of his application for benefits date and was therefore prohibited by Section 509 of the Unemployment Compensation Law, Act of December 5,

[ 111 Pa. Commw. Page 5511936]

, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. ยง 829 from doing so.*fn2 This Court decided the issue in favor of Turtzer concluding that the appeal was not an impermissible collateral attack and remanded the case to the Board for a determination of whether the OES erred in its assignment of an application for benefits date (Turtzer I).

Extensive factual findings were made by the referee in the original action and were adopted by the Board in its order affirming the referee's decision. Neither party challenged the accuracy of those findings. On remand and after consideration of an augmented record the Board made factual findings which are essentially the same as those made in the original decision. For purposes of clarity, we will repeat the complex factual history of this case essentially as it was set forth in our earlier unpublished Turtzer I opinion.

The [factual history underlying this appeal] began in the summer of 1980 when Volkswagon [sic] implemented a mass lay-off due to a plantwide production shutdown. Turtzer and the claimants he represents were laid off on August 29, 1980. In anticipation of the lay-off, on July 30, 1980, representatives of OES, Volkswagon [sic] and Local 2055 of the United Auto Workers Union, Turtzer's collective bargaining agent, met to establish a procedure for expeditiously handling the thousands of unemployment compensation claims which would result from the mass lay-off. . . . [U]nder a new collective bargaining provision, [certain] employees who were to be laid off on August 29, 1980 would be eligible for 'short week benefits' for the week ending September

[ 111 Pa. Commw. Page 5526]

, 1980. . . . [T]his new contract provision [operated such that] employees with at least one year seniority would receive 32 hours of pay at 80% of their regular wage rates, despite the lay-off. Furthermore, because Labor Day fell on September 1, 1980, the employees were entitled to holiday pay for the week ending September 6th. The OES took the position that both the holiday pay and the short week benefits would be offset against the employees' unemployment compensation entitlements. Local 2055, on the other hand, contended that the short week benefits should not be offset [and announced its intention to appeal any determinations which did offset the short week benefits].

The lay-off occurred as scheduled, and the claimants were given an application for benefits date of August 31, 1980 and a waiting week ending September 6, 1980 in accordance with the July agreement between the OES and Local 2055. Subsequent to the lay-off, on September 12, 1980, the OES received the computerized

[ 111 Pa. Commw. Page 553]

    data which was supplied by the employer. This data indicated that for the week ending September 6, 1980, Turtzer and other similarly situated claimants received a cost of living payment in addition to their holiday pay and short week benefits. The sum of these three payments exceeded the sum of the claimants' weekly benefit rate and partial benefit credit. Based on this information, the OES, on September 24, 1980, issued individual determinations ruling the waiting week ending September 6, 1980 invalid and substituting a waiting week ending September 13, 1980. No change was made by the OES regarding the application for benefits date of [August 31, 1980]. No appeals were taken from these determinations.

During the 52 week period subsequent to September 7, 1980, the claimants received four weeks of unemployment compensation benefits due to lay-off, the last benefits being paid for the week ending September 5, 1981. Because the claimants herein had application for benefit dates of August 31, 1980, they did not receive [benefits] equal to four times their weekly benefit rate within their benefit year which ended on August 29, ...


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