Bloomsburg University of Pennsylvania of the State System of Higher Education v. Unemployment Compensation Board of Review

692 A.2d 586, 1997 Pa. Commw. LEXIS 149, 1997 WL 109236
CourtCommonwealth Court of Pennsylvania
DecidedMarch 13, 1997
DocketNo. 1283 C.D. 1996
StatusPublished
Cited by5 cases

This text of 692 A.2d 586 (Bloomsburg University of Pennsylvania of the State System of Higher Education v. 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
Bloomsburg University of Pennsylvania of the State System of Higher Education v. Unemployment Compensation Board of Review, 692 A.2d 586, 1997 Pa. Commw. LEXIS 149, 1997 WL 109236 (Pa. Ct. App. 1997).

Opinion

FLAHERTY, Judge.

Bloomsburg University (Bloomsburg) petitions for review of the April 19, 1996, order of the Unemployment Compensation Board of Review (Board) which affirmed the referee’s decision awarding Claimant waiting week credit, partial benefits and finding Bloomsburg responsible for payment of a portion of partial unemployment compensation benefits awarded to Michael R. Boykin (Claimant). We affirm in part and reverse in part.1

This appears to be a case of first impression before this court. Claimant concurrently worked full-time for two different employers, Heinz Pet Products (Heinz) and Bloomsburg for approximately nineteen months. He was first hired by Bloomsburg in 1992 as a full-time employee, regularly working 37.5 hours per week. About one year later, he was hired by Heinz as a full-time employee, working regularly a rotation of four twelve-hour days one week and three twelve-hour days every other week, until June 12, 1995, when he was discharged for “missing days.” (R.R. 22a, 24a, 25a.) [588]*588Claimant actually worked a total of 73.5 (37.5 + 36) hours every other week, and alternately 85.5 (37.5 + 48) hours every other week after he started working for Heinz. The Board combined Claimant’s work time for the two jobs to arrive at an average figure of 79.5 hours per week.2 Claimant was terminated from his employment with Heinz but did not file for benefits until August 7, 1995, eight weeks after his termination.

The Office of Employment Security (OES) granted Claimant partial benefits. Claimant’s weekly benefit rate was calculated at $340.00 and his partial benefit credit was $136.00. The referee affirmed OES. Blooms-burg appealed to the Board, which initially remanded the ease for reasons not pertinent to this decision. After reviewing the additional information presented at the remand hearing the Board affirmed the referee, finding that Claimant established that he worked 79.5 hours per week over the past nineteen months at his two different jobs.

The Board classified the combined hours as Claimant’s full-time employment and found, therefore, that when Claimant separated from employment with Heinz, his hours worked with Bloomsburg were only part-time, i.e., 42 hours with Heinz versus 37.5 hours with Bloomsburg. The Board, determining that Claimant was unemployed during the weeks at issue, found Claimant eligible for benefits under Sections 401 and 4(u) of the Unemployment Compensation Law (Law)3 because his earnings with Blooms-burg were less than the sum of his weekly benefit rate plus his partial benefit credit. Consequently, Bloomsburg, as one of Claimant’s base year employers, was required to pay a substantial portion (53%) of Claimant’s unemployment compensation benefits. Bloomsburg now appeals to this court.

Bloomsburg raises two issues on appeal: (1) whether the Board erred in determining that Claimant was “unemployed” for purposes of the Law where he continued to work his regular full-time schedule for Bloomsburg during the period of “unemployment” found by the Board, and (2) whether the Board erred in determining that Bloomsburg is responsible for a portion of Claimant’s unemployment benefits where his separation from Heinz was due to willful misconduct.4 Our standard of review is limited to determining whether necessary findings of fact are supported by substantial evidence, whether an error of law was committed or whether constitutional rights were violated. Peoples First National Bank v. Unemployment Compensation Board of Review, 159 Pa.Cmwlth. 134, 632 A.2d 1014 (1993).

The essence of Bloomsburg’s appeal is that, because Claimant remains a regular full-time employee at Bloomsburg, Claimant is not unemployed as to Bloomsburg, and Bloomsburg should not be compelled to pay a portion of his partial benefits in addition to his normal full salary which was, and is, paid. Under Section 401 of the Law, the primary criteria for an employee’s entitlement to receipt of unemployment benefits is that the employee “is or becomes unemployed.” Id, To qualify for benefits, an individual is deemed “unemployed” under Section 4(u) of the Law where:

(II) with respect to any week of less than his full-time work if the remuneration paid or payable to him with respect to such week is less than his weekly benefit rate plus his partial benefit credit.

It is not disputed that, after Claimant was discharged from his employment with Heinz, [589]*589he experienced both a loss of hours and wages. The Board calculated the normal work hours specific to Claimant by utilizing all applicable base year employers, but chose to average Claimant’s hours per week rather than deal with the actual hours worked per week, so that Bloomsburg was determined to be only a part-time employer (37.5 hours) compared to the weekly Heinz average of 42 hours, once the actual alternate weekly Heinz schedule (36 hours) was reasoned out of the calculation. Therefore, under Section 4(u) of the Law, Claimant was deemed unemployed.

Even though Claimant earned less than the sum of his Board-calculated weekly benefit rate plus partial benefit credit during the weeks at issue, we hold that the Board erred in finding Bloomsburg responsible for a portion of Claimant’s partial unemployment compensation benefits. This is so because Bloomsburg is not a part-time employer for purposes of Section 302(a)(2) of the Law,5 thus making contribution inapplicable.

“Full-time work” is not defined by the Act. In determining “full-time work,” one does not focus upon numbers, but rather upon the individual circumstances of the employment. Watkins v. Unemployment Compensation Board of Review, 89 Pa.Cmwlth. 11, 491 A.2d 935 (1985). Indeed, the Law does not defer to the employer’s determination of a full-time work week, but rather looks at the circumstances with reference to the particular employee’s full-time work. Philadelphia Newspapers, Inc. v. Unemployment Compensation Board of Review, 57 Pa.Cmwlth. 639, 426 A.2d 1289 (1981). Because the focus is on the particular circumstances, what is fulltime work of the employee is defined by the employer and the employee within the context of their employment relationship. Berger v. Unemployment Compensation Board of Review, 141 Pa.Cmwlth. 139, 595 A.2d 641 (1991). Case law is clear that when determining what is full-time work one does not focus upon the hours worked but rather upon the individual circumstances. Watkins. As stated in Berger, because the focus is on the particular circumstances, what constitutes full-time work of an employee is defined by the employer and the employee within the context of their employment relationship.

The Board found that Claimant’s work hours with Bloomsburg constituted part-time. The Board’s almost complete focus only on hours worked is misplaced. This is error on the part of the Board.

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Bluebook (online)
692 A.2d 586, 1997 Pa. Commw. LEXIS 149, 1997 WL 109236, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bloomsburg-university-of-pennsylvania-of-the-state-system-of-higher-pacommwct-1997.