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07/01/97 CALVIN R. FISHER v. UNEMPLOYMENT

July 1, 1997

CALVIN R. FISHER, PETITIONER
v.
UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT; ANTHONY J. KAYDO, PETITIONER V. UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT



Appealed From No. B-354657 and 354758. State Agency Unemployment Compensation Board of Review.

Before: Honorable James Gardner Colins, President Judge, Honorable Jim Flaherty, Judge, Honorable Emil E. Narick, Senior Judge. Opinion BY Senior Judge Narick.

The opinion of the court was delivered by: Narick

OPINION BY

SENIOR JUDGE NARICK

FILED: July 1, 1997

The issue presented in this appeal is whether the Unemployment Compensation Board of Review (Board) properly determined that Calvin R. Fisher and Anthony J. Kaydo (Claimants) were not entitled to a remand hearing to show that they had received vacation monies that they claim should have been included in their base year.

Claimants appealed the orders of the Board that affirmed the decisions of the referee that Claimants were ineligible for benefits under Section 404 of the Unemployment Compensation Law (Law). *fn1 We reverse and remand.

Both Claimants were employed for over thirty years by Trinity Industries, Inc. (Employer) before the plant in which they worked was closed on May 5, 1995. Claimants filed an application for unemployment compensation benefits on May 5, 1996, but the Job Center denied benefits because Claimants did not have sufficient earnings in their base year of January 1, 1995 to December 31, 1995. *fn2 Claimants appealed and a hearing was held before a referee. Although neither Claimants nor Employer attended the hearing, two representatives of Local 3312 of the United Steelworkers of America (Union) appeared at the hearing on behalf of Claimants. *fn3

The testimony of the Union representatives revealed that Employer and the Union had in effect a collective bargaining agreement while the plant in the Uniontown area was in operation. In early 1995, however, the Union learned that Employer planned to close this plant on May 5, 1995. Thereafter, the Union and Employer entered into negotiations over the terms of the shutdown of the plant. As a result of the negotiations, the parties entered into an alleged "shutdown" agreement (agreement). In support of the alleged agreement, the Union representatives produced an unsigned copy of the agreement at the hearing. The Union representatives testified that vacation pay earned in 1995 would have normally been payable in 1996 because vacation pay was based on work performed in the previous year. The agreement adjusted the normal procedure by providing that displaced employees would receive payment for any earned but unused vacation as well as any vacation earned in 1995 before shutdown. *fn4 Under the agreement, Claimants were eligible to receive 5/12 of their 1995 vacation pay because they worked until the plant closed in May 1995. The Union representatives also testified that Employer had advised the Union that the pro-rata vacation payments would be made within three weeks of the shutdown of the plant. Union representatives also presented written calculations to show the amounts they were to receive from Employer.

However, the referee found Claimants to be financially ineligible for benefits because Claimants had not yet received the vacation payments at the time of the hearing. Claimants then appealed to the Board. While their appeals were pending in September 1996, Claimants received their vacation payments. As a result, Union representatives sent a letter with accompanying documents to the Board explaining that Claimants had received the vacation pay and requesting a remand hearing at which the additional evidence could be presented.

Despite the letter from Union representatives, the Board affirmed the referee and concluded that Claimants did not have sufficient earnings in their base year. In support of its decision, the Board made the following pertinent Findings of Fact:

4.

Claimant's union representative states that a plant closing agreement was negotiated in which it was promised that claimants would be paid an amount of money attributable to vacation pay, which claimants ...


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