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Shawn E. Oliver v. Unemployment Compensation Board of Review

August 17, 2011

SHAWN E. OLIVER, PETITIONER
v.
UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT



The opinion of the court was delivered by: Rochelle S. Friedman, Senior Judge

Submitted: March 4, 2011

BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION BY SENIOR JUDGE FRIEDMAN*fn1

Shawn E. Oliver (Claimant) petitions for review of the July 15, 2010, order of the Unemployment Compensation Board of Review (UCBR) reversing the decision of a referee to award Claimant unemployment compensation benefits. The UCBR concluded that Claimant was ineligible for benefits under section 402(b) of the Unemployment Compensation Law (Law).*fn2 We affirm.

Claimant worked as a maintenance superintendent for The Philadelphia Housing Authority (Employer) from August 1, 1980, through October 30, 2009.

(UCBR's Findings of Fact, No. 1.) During his tenure with Employer, Claimant was a member of AFSCME District Council, Local No. 2186 (Union). (UCBR's Findings of Fact, No. 3.) Union and Employer were parties to a collective bargaining agreement (CBA) that covered wages, hours, and terms and conditions of employment of Union members, including Claimant. (UCBR's Findings of Fact, No. 4.) After the CBA expired in March 2008, negotiations between Union and Employer were ongoing for a successor CBA. (UCBR's Findings of Fact, Nos. 4-5.) Union and Employer were also parties to a side agreement, which provided that the pension of a covered employee retiring before November 1, 2009, would be calculated using the employee's wages during his last three years of employment. (UCBR's Findings of Fact, Nos. 6-7.)

Claimant, who was forty-seven years old, contacted Employer's employment administrator, Pamela Gibson, and learned that his pension would be rolled back if he worked past November 1, 2009. Claimant asked Gibson what his monthly pension benefit would be if he were to retire before and after that date. (UCBR's Findings of Fact, Nos. 2, 8-9.) Before November 1, 2009, Claimant's monthly pension benefit would be $3,051.46; if Claimant resigned after that date, his monthly pension benefit would be $2,705.34. (UCBR's Findings of Fact, No. 10.) At the hearing before the referee, Claimant admitted that, had he worked until age fifty-five, his pension benefits would have been more than if he retired before November 1, 2009. (UCBR's Findings of Fact, No. 11.)

As of October 2009, Union and Employer had not yet negotiated a new CBA. One issue that the parties were still negotiating was a change to Employer's pension plan. (UCBR's Findings of Fact, No. 12.) On October 30, 2009, Claimant resigned from his employment because he believed that if he did not retire on that date, he would lose pension money. (UCBR's Findings of Fact, No. 13.)

Claimant filed a claim for unemployment benefits, which was denied by the local service center. Claimant appealed to the referee. After an evidentiary hearing, the referee reversed and awarded Claimant benefits. The referee found that Claimant voluntarily retired "because the sweetheart deal he received under the current contract was set to expire," which would have resulted in a $300-per-month loss in pension benefits if he remained employed. (Referee's Decision/Order at 2.) Noting that "[a]ny reasonable person in Claimant's situation would have done the same thing," (id.), the referee concluded that Claimant had a necessitous and compelling cause to retire.

Employer appealed to the UCBR, which reversed. The UCBR found that Claimant admitted that, had he continued to work until age fifty-five, his pension benefits would have been greater than they were as of his retirement in October 2009. Thus, the UCBR concluded that Claimant's pension reduction was not so substantial as to create a necessitous and compelling reason to voluntarily retire. Claimant now petitions for review of that decision.*fn3

Claimant first argues that the UCBR improperly based its determination on future circumstances rather than on the facts at the time of his separation. Claimant asserts that he faced a $300-per-month reduction in pension benefits if he did not retire before November 1, 2009, and that this fact alone provided a necessitous and compelling reason to retire on October 30, 2009. We disagree.

A claimant who voluntarily terminates his employment has the burden of proving that a necessitous and compelling cause existed for the termination. Petrill v. Unemployment Compensation Board of Review, 883 A.2d 714, 716 (Pa. Cmwlth. 2005). To receive unemployment benefits following voluntary retirement, a claimant must establish that he acted with ordinary common sense in retiring and made a reasonable effort to preserve his employment. Id.

We agree with Employer that this case is analogous to Petrill. In that case, the claimant voluntarily retired based on his belief that he would lose a portion of his health benefits due to ongoing collective bargaining negotiations between his union and his employer. The parties had not yet reached an agreement on a successor CBA as of the date of the hearing. Id. at 715-16. The UCBR determined that: (1) the claimant's belief regarding the terms of the successor CBA was based on speculation; and (2) the claimant had the option of continuing to work, thus increasing any amount that would be available to him upon retirement. Id. at 716. ...


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