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BONNIE BEERS (TOKEN CLAIMANT) v. COMMONWEALTH PENNSYLVANIA (07/29/88)

decided: July 29, 1988.

BONNIE BEERS (TOKEN CLAIMANT), PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT. PEARLIE M. PARKER, PETITIONER V. COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT. UNITED FOOD AND COMMERCIAL WORKERS UNION, LOCAL 1357, PETITIONER V. COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT. DELORES A. WETZEL, PETITIONER V. COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT



Appeals from the Order of the Unemployment Compensation Board of Review in the cases of Bonnie Beers (Token Claimant), No. B-255478; Pearlie M. Parker, No. B-255479; United Food and Commercial Workers Union, Local 1357 and Delores A. Wetzel, No. B-259400.

COUNSEL

Ira H. Weinstock, with him, Gerard M. Mackarevich, for petitioner, Bonnie Beers.

Donald Marritz, with him, Carolyn Carter, Legal Services, Inc., for petitioner, Delores Wetzel.

Jonathan Zorach, with him, James K. Bradley, Assistant Counsel, and Clifford F. Blaze, Deputy Chief Counsel, for respondent.

Peter V. Marks, Sr., Kirschner, Walters & Willig, for petitioner, United Food & Commercial Workers Union, Local 1357.

Bruce D. Bagley, with him, Alan R. Boynton, Jr., Norman I. White, and H. Lee Roussel, McNees, Wallace & Nurick, for intervenor, Knouse Foods Cooperative, Inc.

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

Author: Barry

[ 118 Pa. Commw. Page 253]

Section 402.5 of the Unemployment Compensation Law (Law), Act of December 5, 1936, P.L. 2897, as amended, added by the Act of July 1, 1985, P.L. 96, 43 P.S. ยง 802.5 provides in pertinent part:

Notwithstanding any other provision of this act with respect to service performed in a 'seasonal operation' or 'seasonal industry', as defined in this section, benefits shall not be paid to a seasonal worker, based on such services, for any week of unemployment occurring outside of the normal seasonal period of operation, provided there is a contract or reasonable assurance that

[ 118 Pa. Commw. Page 254]

    such worker will perform services in that seasonal industry in his next normal seasonal period.

Before us are four appeals that have been consolidated for our review. Two of these appeals are from orders of the Unemployment Compensation Board of Review (Board) affirming decisions of the referee to grant seasonal status to a fruit or vegetable food processing operation of an employer. The remaining two are from an order of the Board reversing a decision of the referee to deny seasonal status to a fruit or vegetable food processing operation of an employer. The central issues of these appeals are whether the Board erred as a matter of law in concluding that the operation in question was a seasonal operation for the purpose of Section 402.5, and whether Section 402.5's authorization of the denial of benefits to seasonal workers in the fruit and vegetable food processing industry during the off-season period, and the procedures provided therein for obtaining a seasonal determination and review thereof comply with the mandates of the state and federal constitutions. We present first the facts and procedural history of each case separately.

367 C.D. 1987

Knouse Foods Corporation (Knouse) is engaged in the commercial processing of cherries into pie filling at its plants at Peach Glen and Biglerville. It also processes apples at both plants and peaches at the Peach Glen plant.

On or about May 20, 1986, Knouse applied to the Office of Employment Security (OES) for a determination that its fresh cherry processing operations at its Peach Glen and Biglerville plants were seasonal operations for the purposes of Section 402.5. Copies of these applications were posted on an unspecified date. On June 11, 1986, the OES granted Knouse's applications.

[ 118 Pa. Commw. Page 255]

The normal seasonal period for the fresh cherry processing operation at the Peach Glen plant was determined to run from June 16, 1986 to August 9, 1986, while the normal seasonal period for the fresh cherry processing operation at the Biglerville plant was held to run from June 16, 1986 through July 19, 1986. Notices of these determinations were received by Knouse on June 12, 1986 and copies of the applicable notice were posted on each of its six bulletin boards in each plant on June 13, 1986.

On June 20, 1986, Local No. 1357 of the United Food and Commercial Workers Union (Union), together with Bonnie Beers, an employee at Knouse's Peach Glen plant, filed an appeal from the OES's determinations on behalf of Ms. Beers and all other similarly situated employees. Following a hearing on the matter, the referee issued a decision reversing the OES's determinations. Knouse then appealed to the Unemployment Compensation Board of Review (Board), which reversed the decision of the referee. In doing so, the Board made the following findings of fact regarding Knouse's cherry processing operations:

7. Knouse processes approximately 3,000 tons of cherries at Peach Glen and approximately 1,000 tons at Biglerville.

8. Approximately fifteen (15) to twenty (20) tons of fresh cherries are frozen at Biglerville and none are frozen at Peach Glen.

9. Cherries are a perishable product and must be processed within forty-eight hours from the time of receipt from the growers.

10. Upon receipt from the growers, the fresh cherries are placed in a preparation room, which is used only for cherries during the fresh cherry season.

11. This preparation room is kept separate from the remainder of the Peach Glen plant and

[ 118 Pa. Commw. Page 256]

    most of the employees hired for the cherry season are employed in that room.

12. The cherry processing operation requires that the cherries be cooled in tanks and then pitted by pitting machines.

13. The cooking [sic] tanks and pitters at Peach Glen are utilized only for the processing of cherries and not for any other fruit.

14. After pitting, the cherries are further processed into pie filling to be sold.

15. At the Biglerville plant, there is no separate room for preparation but there are cooling tanks and pitting machines used only for cherries.

16. There were approximately 325 employees on the payroll at Peach Glen and 180 to 200 employees at Biglerville. Sixty percent (60%) of the work forces at each plant work less than 180 days per year.

17. The preparation room at Peach Glen is also used for the processing of peaches; however, this fruit is not cooled, so the [cooling] tanks are not needed, and they are pitted by different machines than those used by claimant [when removing pits from cherries].

18. Apples pass through the preparation room at Peach Glen; however, they are not processed but merely proceed on a conveyor belt to other areas of the plant.

An appeal to this Court followed.

1754 C.D. 1987 & 1764 C.D. 1987

Knouse is engaged in the commercial processing of apples into applesauce and apple juice at its plant in Orrtanna.

[ 118 Pa. Commw. Page 257]

On August 7, 1986, Knouse applied to the OES for a determination that its conventional appleasuce production operation and its apple juice production operation at its Orrtanna plant were seasonal operations for the purpose of Section 402.5. Copies of this application were posted on Knouse's bulletin boards when an OES representative visited the plant on August 21, 1986. On September 5, 1986, the OES granted Knouse's application. The normal seasonal period for these operations was held to run from September 8, 1986 to May 13, 1987. The Orrtanna plant manager was asked by Knouse's personnel manager to post copies of the determination sometime in the beginning of October, 1986. It was alleged that copies of the determination may not have been properly posted. However, the union received a copy of the determination in a timely manner and thereafter filed a timely appeal therefrom on behalf of its membership. After a hearing on the matter, the referee affirmed the determination of the OES. In doing so, she made the following findings of fact regarding Knouse's apple processing operations:

7. The Orrtanna plant employs approximately 270 persons when processing fresh apples. Of that number approximately 130 are seasonal, work only while fresh apples are being processed and are laid off at the end of the fresh apple season.

8. The Orrtanna plant operates limited maintenance and warehousing facilities on a year-round basis and also operates an aseptic line on a year-round basis.

9. The Orrtanna plant operated for the processing of apples for 153 days of work during the 1985 apple season.

10. The Orrtanna plant is scheduled to operate for the processing of apples for approximately

[ 118 Pa. Commw. Page 258151]

days of work in the 1986 apple season.

11. The aseptic line is separate from the fresh apple processing operation. Persons working on the aseptic line generally work year round as do maintenance and warehouse workers.

12. The apple processing equipment used in the normal apple line at the Orrtanna plant is shut down at the end of the apple season until the next apple season begins.

14. The Orrtanna plant is functionally distinct from other Knouse Foods Cooperative Plants.

The union appealed the referee's decision to the Board, which affirmed it. An appeal by the union to this Court followed, as did an appeal by Dolores E. Wetzel, an employee at Knouse's Orrtanna plant who had not been a party to the administrative agency action. Ms. Wetzel also filed a "Motion to Remand", in which she requested that the matter be remanded so that the Board could consider evidence which she claimed showed that Knouse's conventional applesauce production operation was operated during the 1986-87 season for a period in excess of 180 days. That motion was denied by this Court.

404 C.D. 1987

W.E. Bittinger Co. (Bittinger) is engaged in commercial processing of corn.

On May 20, 1986, Bittinger applied to the OES for a determination that its fresh sweet corn processing operation was a seasonal operation for the purpose of Section 402.5. Copies of the application were conspicuously posted on three bulletin boards in the plant on May 20, 1986. On June 10, 1986, the OES granted Bittinger's

[ 118 Pa. Commw. Page 259]

    application. The notice of this determination was received by Bittinger on June 11, 1986 and copies of it were conspicuously posted on the three bulletin boards in the plant on the same day.

On July 22, 1986, Pearlie M. Parker, an employee of Bittinger, filed an appeal from that determination. This appeal was deemed to be timely. After a hearing on the matter, the referee affirmed the OES's determination. In doing so, the following findings of fact regarding Bittinger's corn processing operations were made:

8. W.E. Bittinger Co., Inc. is engaged in commercial corn freezing contracts with growers in Eastern Shore, Pennsylvania and New York for such corn which is hauled by truck to the employer's plant in Hanover, Pennsylvania. The processing of such corn into a frozen state is done each year from approximately mid July to mid October -- depending on the weather. The corn is placed in large 'tote bins' and stored in the freezer for future packaging and distribution during other months of the year.

9. Due to the growing season, on July 17, 1986, the employer began trucking in corn to be processed.

10. The employer uses the processing area of his plant and the processing machinery only during fresh corn processing season from approximately mid July to mid October.

11. The employer has another area where a repack operation is conducted on a yearly basis. The frozen corn in the 'tote bins' is removed from storage and repacked in accordance with the orders of the employer's customers.

12. The employer hires approximately 100 persons in the repack operation who work full time year round and approximately 250 other

[ 118 Pa. Commw. Page 260]

    workers who work only during the fresh corn processing seasons.

Ms. Parker appealed the referee's decision to the Board, which affirmed it. An appeal ...


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