Summary
stating that legislative intent of unemployment compensation laws is not to subsidize vacation times for individuals who "know well in advance" that they may be unemployed for specific periods of time
Summary of this case from Pittsburgh v. Compn. Bd.Opinion
Argued September 14, 1978
December 11, 1978.
Unemployment compensation — Availability for suitable work — Unemployment Compensation Law, Act 1936, December 5, P.L. (1937) 2897 — School employes — Summer unemployment — Expectation of recall.
1. School employes who are laid off during the summer recess between semesters are unavailable for suitable work and ineligible for benefits under the Unemployment Compensation Law, Act 1936, December 5, P.L. (1937) 2897, unless such employes can establish that they had reason to believe they would not be recalled to work at the conclusion of the vacation period. [148-9]
Argued September 14, 1978, before Judges MENCER, DiSALLE and MacPHAIL, sitting as a panel of three.
Appeal, No. 833 C.D. 1977, from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Joanna Davis, No. B-138768-B.
Application with the Bureau of Employment Security for unemployment compensation benefits. Application denied. Applicant appealed to the Unemployment Compensation Board of Review. Denial affirmed. Applicant appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
James H. English, for petitioner.
Charles G. Hasson, Assistant Attorney General, with him Gerald Gornish, Attorney General, for respondent.
Joanna Davis (claimant) appeals an order of the Unemployment Compensation Board of Review (Board) denying her benefits under Section 401(d) of the Unemployment Compensation Law (Act), Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P. S. § 801(d). We affirm.
The claimant was employed as a cafeteria worker for the Altoona Area School District (District) for three years prior to the present controversy. As in the past, on June 8, 1976, school closed and claimant was laid off for the summer. She promptly filed an application for Special Unemployment Assistance (SUA) benefits. The Bureau of Employment Security denied her claim, on the basis that she was unavailable for suitable work, citing Section 401(d) of the Act. The referee and the Board, relying respectively on Chickey v. Unemployment Compensation Board of Review, 16 Pa. Commw. 485, 332 A.2d 853 (1975), and Calvano v. Unemployment Compensation Board of Review, 29 Pa. Commw. 79, 368 A.2d 1367 (1977), affirmed, finding that claimant expected to return to work with the District in the fall. After a petition for reconsideration and oral argument by the claimant, the Board reaffirmed its decision and this appeal followed.
The claim was filed pursuant to Title II of the Emergency Jobs and Unemployment Assistance Act of 1974, 26 U.S.C.A. § 3304. While claimant's initial eligibility must be determined by reference to this Act, the ultimate eligibility for SUA benefits is based on applicable state standards, including those pertaining to a claimant's availability.
Claimant seeks to distinguish our decision in Chickey, supra, where we held that school employees who expected and desired to return to work with their employers at the end of a summer or vacation recess are "unavailable for suitable work" under Section 401(d) of the Act. As noted in Tokar v. Unemployment Compensation Board of Review, 35 Pa. Commw. 241, 385 A.2d 634 (1978), the status of employees of educational institutions is unique, being analogous to that of students. See, e.g., Claim of Wright, 25 Pa. Commw. 522, 360 A.2d 842 (1976); Woodley v. Unemployment Compensation Board of Review, 13 Pa. Commw. 8, 317 A.2d 897 (1974). Such treatment conforms with the Legislature's intent not to subsidize the vacation periods of those who know well in advance that they may be laid off for certain specified periods. See, e.g., Minnick v. Unemployment Compensation Board of Review, 36 Pa. Commw. 648, 388 A.2d 798 (1978). As stated in Chickey, supra.
[i]n effect what the employes in this case are requesting is that the government should provide them with a full year's income because they have agreed to work and be paid for only 44 weeks of each year.
Id. at 494, 332 A.2d at 857.
Indeed, an analysis of the cases following Chickey indicate that educational personnel are normally ineligible for benefits during a prescheduled vacation period absent proof on their part that there is some substantial reason to believe they will not be recalled at the end of the recess. See Minnick, supra; Hyduchak v. Unemployment Compensation Board of Review, 35 Pa. Commw. 575, 387 A.2d 669 (1978); Miller v. Unemployment Compensation Board of Review, 34 Pa. Commw. 536, 383 A.2d 1303 (1978); Ritter v. Unemployment Compensation Board of Review, 34 Pa. Commw. 68, 382 A.2d 1255 (1978); Calvano, supra. Cf. Section 402.1 of the Act, added by Section 5, Act of July 6, 1977, P.L. 41, 43 P. S. § 802.1 (recent amendment to the Act, consonant with the holding of Chickey).
In the absence of anything in the record to indicate that claimant had any reasons to believe she would not be recalled, claimant has not sustained her burden of proof. Moreover, given the contradictions in claimant's testimony and a similar method of recall as in Hydachak, supra, and Chickey, supra, we cannot say, utilizing the applicable standard of review, see Greer v. Unemployment Compensation Board of Review, 34 Pa. Commw. 602, 383 A.2d 1327 (1978), that the Board capriciously disregarded competent evidence in finding that claimant desired and expected to be recalled by her employer. Therefore, the order of the Board must be affirmed.
On the contrary, the employer's separation notice, form UC-45A, indicates that the District expected the claimant to return to work on September 9, 1976.
For example, claimant on her availability questionnaire, form UC-990, answered the question, "Do you expect to return to your school job at the end of the summer?" by marking the "yes" space and writing "if recalled." A claimant in Hyduchak, supra, made a similar response and was denied benefits.
Claimant was normally recalled, by telephone, two days before she was to report for work.
ORDER
AND NOW, this 11th day of December, 1978, the order of the Unemployment Compensation Board of Review, dated March 28, 1977, denying Joanna Davis benefits, is hereby affirmed.