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Matthew Munski v. Unemployment Compensation Board of Review

September 27, 2011

MATTHEW MUNSKI, PETITIONER
v.
UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT



The opinion of the court was delivered by: Mary Hannah Leavitt, Judge

Submitted: May 20, 2011

BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JAMES R. KELLEY, Senior Judge

OPINION BY JUDGE LEAVITT

Matthew Munski (Claimant) petitions for review of an adjudication of the Unemployment Compensation Board of Review (Board) denying him benefits pursuant to Section 402(b) of the Unemployment Compensation Law (Law).*fn1 In doing so, the Board affirmed the Referee‟s determination that he quit without cause of a necessitous and compelling nature. Claimant contends that he did not leave his employment voluntarily and accepted a severance package only because he believed his job was going to be eliminated. Discerning no error by the Board, we now affirm.

Claimant was employed by Verizon Communications, Inc. (Employer) as a full-time service technician, with a final rate of pay of $31.86 an hour. He worked for Employer from February 7, 2005, through July 3, 2010, when he accepted Employer‟s "Enhanced Income Security Plan" (EISP). Certified Record (C.R. __), Item No. 2, Service Center Exhibit 4. Claimant then applied for unemployment benefits, which were denied when the UC Service Center determined that Claimant voluntarily left his employment. Claimant appealed, and a hearing was held before a Referee.

At the hearing, Claimant appeared pro se. He testified that under Employer‟s union contract with its employees, only persons hired after August 3, 2003, can be laid off. Further, before a layoff is announced, Employer is required to declare an employee surplus and offer a severance package. In 2009, Employer declared a surplus and offered a severance package to a group of employees, i.e., licensed technicians. At the end of the 2009 process, every licensed technician who was hired after August 3, 2003, and did not take the severance package was laid off.

A letter dated February 26, 2010, from Employer to the union president was offered into evidence by Claimant. The letter stated that Employer was going to offer an EISP to selected employees to reduce the complement of employees.*fn2 The letter further stated:

In the event the EISP offer does not sufficiently reduce the force in this organization, this letter serves as notification, pursuant to Article 9, Section 9.05 of the parties‟ Collective Bargaining Agreement, that the Company may proceed to a layoff of employees with a net credited service date on or after August 3, 2003. The occupational title(s) which could be affected by this anticipated layoff will not be known until after the results of the EISP are evaluated.

C.R., Item No. 2, Service Center Exhibit 4. Employees hired before August 3, 2003, could not be laid off.

Claimant testified that Employer circulated a list of 12,000 surplus employees nationwide, with 1,600 in Pennsylvania. Claimant‟s name, along with the names of every service technician who worked at Claimant‟s facility, was on the surplus list. When he saw the list, he discussed it with his supervisor, Frank Cilento, who replied that he did not know what would happen but his "best guess [was] yes. I would not have a job." Notes of Testimony at 8 (N.T. ___). Cilento‟s supervisor advised Claimant‟s union representative that "[i]f he was in the position, he would take this offer. They are going to eliminate everybody back to 2003." N.T. 8.

Claimant testified that he believed that Employer could not achieve the reduction in force of 12,000 employees without laying off people hired after August of 2003. Accordingly, Claimant accepted the offer. The plan paid Claimant $50,000 and an additional $2,200 for each year of employment for a total of $61,000. Claimant testified that he took the $61,000 because he believed that he was going to lose his job. After he accepted the offer, Employer set his final day of work as July 3rd.

Cilento, Claimant‟s supervisor, testified for Employer. Cilento denied telling Claimant that he would be laid off if he did not take the offer. He acknowledged that the area manager, Paul Spankenburg, did tell the local union representative that "it was probably in the best interest of any Technician hired after 2003 to probably take [the EISP]." N.T. 10. Cilento testified that to date Employer has not laid off any of the service technicians and that if Claimant had not accepted the offer, he would have continued to work. He stated that Claimant did not have to accept the offer.

The Referee found that Claimant was offered a voluntary EISP and neither Claimant‟s supervisor nor other members of management informed him that his position would be eliminated if he rejected the offer. In light of that factual finding, the Referee concluded that Claimant voluntarily terminated his employment by accepting the plan. Therefore, Claimant did not have a necessitous and compelling reason to resign.

Claimant appealed to the Board. The Board adopted the findings and conclusions of the Referee and affirmed without further opinion. ...


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