Barillaro v. Commonwealth, Unemployment Compensation Board of Review

387 A.2d 1324, 36 Pa. Commw. 325, 1978 Pa. Commw. LEXIS 1143
CourtCommonwealth Court of Pennsylvania
DecidedJune 26, 1978
DocketAppeals, Nos. 249 and 250 C.D. 1977
StatusPublished
Cited by23 cases

This text of 387 A.2d 1324 (Barillaro v. Commonwealth, Unemployment Compensation Board of Review) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Barillaro v. Commonwealth, Unemployment Compensation Board of Review, 387 A.2d 1324, 36 Pa. Commw. 325, 1978 Pa. Commw. LEXIS 1143 (Pa. Ct. App. 1978).

Opinion

Opinion by

Judge Mencer,

These appeals were taken individually by Nancy Fotia and Nancy M. Barillaro (claimants) and were consolidated for argument before this Court since both cases involve the same issues.

The referee decided that claimants were ineligible, under Section 402(a) of the Unemployment Compensation Law (Act), Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802 (a),1 to receive unemployment compensation benefits [327]*327because they refused offers of suitable work without good cause. The Unemployment Compensation Board of Review (Board) affirmed, and claimants appeal to this Court.

Both claimants had been employed in the inspection and trimming department at Elwood Knitting Mills (Elwood) at salaries of $2.80 per hour. Both had worked at Elwood for approximately 16 years. Barillaro was laid off in September 1975 and Potia on November 7, 1975. On March 20, 1976, claimants were informed that they could return to work at Elwood as knitting machine operators at $2.30 per hour. Neither accepted the offer. The referee concluded, and the Board agreed, that the reasons given by the claimants for their refusals did not constitute “good cause” within the meaning of the Act. We affirm.

Claimants argue that their refusal to accept the offered work was with good cause for the following reasons: (1) The offered work would have involved a loss of seniority and a 17.8-percent reduction in pay; (2) each claimant questioned her ability to perform the offered work, i.e., Potia claimed that she was unfamiliar with the machine and Barillaro claimed that she was “too short” to operate the machine; and (3) Elwood allegedly agreed, in a collective bargaining agreement provision and by direct suggestion at the time the work was offered to claimants, that claimants could refuse the offers without jeopardizing their unemployment benefits.

In Unemployment Compensation Board of Review v. Lowell, 24 Pa. Commonwealth Ct. 309, 314, 355 A.2d 616, 619 (1976), this Court said:

[328]*328'Good cause ’ for refusing suitable work must be ‘real not imaginary, substantial not trifling, reasonable not whimsical.’ Barclay White Co. v. Unemployment Compensation Board of Review, 356 Pa. 43, 48, 50 A.2d 336, 340 (1947), and a claimant’s reasons must be of the magnitude that compels his or her decision to refuse the offer. Barclay White Co., supra.

In addition, in Lattanzio v. Unemployment Compensation Board of Review, 461 Pa. 392, 398, 336 A.2d 595, 598 (1975), the Supreme Court, quoting from the opinion in Bentz Unemployment Compensation Case, 190 Pa. Superior Ct. 582, 155 A.2d 461 (1959), said:

‘Good cause for refusing a referral rests on good faith, and good faith, as used in this context, includes positive conduct on the part of the claimant which is consistent with a genuine desire to work and to be self-supporting. Brilhart Unemployment Compensation Case, 159 Pa. Superior Ct. 567, 569, 49 A.2d 260.’

The reduction in pay was not sufficiently compelling to constitute good cause. This Court has held that a claimant’s particularity for desired employment must decrease, as his length of unemployment increases, to the point of accepting substantially less remuneration. Liebrum v. Unemployment Compensation Board of Review, 32 Pa. Commonwealth Ct. 401, 379 A.2d 664 (1977). See Donnelly v. Unemployment Compensation Board of Review, 17 Pa. Commonwealth Ct. 39, 330 A.2d 544 (1975); Raiskin Unemployment Compensation Case, 186 Pa. Superior Ct. 37, 140 A.2d 467 (1958) (cases in which good cause was lacking where facts demonstrated greater disparity in pay and shorter periods of unemployment than exist here).

With regard to loss of seniority, the record reveals that claimants would have retained partial seniority [329]*329rights within the plant, had they accepted the proffered position. Therefore, it would have been more advantageous to accept this work than other suitable work with another employer which the law would require be accepted regardless of the lack of seniority.

Fotia was not justified in refusing the offer because she was unfamiliar with the operation of the machine, nor was Barillaro justified because she thought she was “too short. ’ ’

As to Fotia, it has been held that to refuse an offer which is reasonably similar to former work, without a trial, is indicative of a lack of good faith. Bicer v. Unemployment Compensation Board of Review, 31 Pa. Commonwealth Ct. 519, 377 A.2d 828 (1977). This is especially so where the employer offered to train the claimant as Elwood did in this case. See Unemployment Compensation Board of Review v. Kosinsky, 18 Pa. Commonwealth Ct. 286, 335 A.2d 843 (1975).

Likewise, with regard to Barillaro, she had no actual experience with the machine and offered no evidence, medical or otherwise, to support her claim that she may be unable to perform the proffered work. To refuse the work without a trial, under the above circumstances, is also indicative of a lack of good faith. Kosinsky, supra.

The arguments that claimants’ right to refuse was protected under the terms of a collective bargaining agreement and that Elwood’s representative assured claimants that refusal would not jeopardize their right to unemployment benefits are without merit. This is so in view of the principle enunciated in Gagliardi Unemployment Compensation Case, 186 Pa. Superior Ct. 142, 152, 141 A.2d 410, 416 (1958), cited with approval by the Supreme Court in Gianfelice Unemployment Compensation Case, 396 Pa. 545, 153 A.2d 906 (1959), that “[t]he employer and the employe cannot deter[330]*330mine by agreement that an employe shall receive unemployment benefits, when under the facts and the law he is not entitled to such payments. ”

Therefore, whether or not the labor agreement protects claimant’s right to refuse is not determinative of eligibility under the Act, and the mere reliance upon those provisions and communicated assurances is insufficient to support a good-cause refusal of suitable work.

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387 A.2d 1324, 36 Pa. Commw. 325, 1978 Pa. Commw. LEXIS 1143, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barillaro-v-commonwealth-unemployment-compensation-board-of-review-pacommwct-1978.