Opinion
November 20, 1984.
Unemployment compensation — Voluntary termination — Cause of necessitous and compelling nature — Burden of proof — Reduction in pay — Training period — Good faith.
1. In order to qualify for unemployment compensation benefits, an employe voluntarily terminating employment must prove that such action was for a cause of a necessitous and compelling nature. [121]
2. Although a reduction in pay can constitute a necessitous and compelling cause for terminating employment under some circumstances preserving the right of the resigning employe to unemployment compensation benefits, a temporary pay reduction for four or six weeks while the employe is retrained for new work after her former job was eliminated does not constitute such a cause. [121-2]
3. A change in the product a piece worker must produce without a change in the pay rate does not constitute a necessitous and compelling cause for terminating employment, and an employe voluntarily terminating employment without making a good faith effort to attempt the new position to ascertain whether it was within her ability and would result in the same wage is ineligible for unemployment compensation benefits. [122]
Submitted on briefs September 13, 1984, to Judges DOYLE, PALLADINO and BARBIERI, sitting as a panel of three.
Appeal, No. 592 C.D. 1983, from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Annita Citrigno, No. B-214373.
Application with the Office of Employment Security for unemployment compensation benefits. Benefits awarded. Employer appealed. Referee reversed. Applicant appealed to the Unemployment Compensation Board of Review. Denial affirmed. Applicant appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
Michael A. Latzes, Arkans Levans, P.C., for petitioner.
Michael Alsher, Associate Counsel, with him, Charles Hasson, Acting Deputy Chief Counsel, for respondent.
Annita Citrigno (Claimant) appeals from an order of the Unemployment Compensation Board of Review (Board) which affirmed a referee's denial of benefits pursuant to Section 402(b) of the Unemployment Compensation Law on the grounds that Claimant quit her job voluntarily and without a necessitous and compelling cause.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P. S. § 802(b). This section provides, in pertinent part:
An employe shall be ineligible for compensation for any week —
. . . .
(b) In which his unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature. . . .
Claimant was employed as a sewing machine operator by Pincus Brothers Clothing Corp. in Philadelphia for nearly eight and a half years. She worked on mens' vests for an average hourly rate of approximately $8.62 as a piece-worker. Her earnings were therefore based upon her level of proficiency. In September of 1982, Claimant was informed that her position making vests was to be phased out, and she was offered a new position working on mens' jackets. She was also told that this would entail working at a straight hourly rate of $6.50 for a training period of approximately four to six weeks. Following the training period, she would have been paid on the same piece-work basis as before, and presumably, would have earned approximately the same wages. This retraining arrangement was in conformity with an existing union/management agreement. Claimant demanded that she receive an hourly wage of $8.30 while in training, and when management refused to comply with this request, she left her job.
There is no dispute over the fact that Claimant terminated her employment voluntarily. This being the case, the burden falls upon Claimant to prove that she had a necessitous and compelling reason for leaving. Porter v. Unemployment Compensation Board of Review, 61 Pa. Commw. 505, 434 A.2d 245 (1981). Claimant relies on Ship Inn, Inc. v. Unemployment Compensation Board of Review, 50 Pa. Commw. 292, 412 A.2d 913 (1980), wherein this Court held that a substantial reduction in pay may constitute a "necessitous and compelling" cause for voluntarily terminating one's employment. It is certainly true that the reduction in pay in Ship Inn was approximately 25%, which nearly equals the Claimant's reduction in the case sub judice. The crucial difference is that Claimant's reduction here was to be only temporary. See Stratford v. Unemployment Compensation Board of Review, 78 Pa. Commw. 54, 466 A.2d 1119 (1938); Snyder Unemployment Compensation Case, 194 Pa. Super. 622, 169 A.2d 578 (1961); Kinter Unemployment Compensation Case, 180 Pa. Super. 529, 119 A.2d 639 (1956).
The Pennsylvania Supreme Court has defined as "necessitous and compelling" those circumstances "which produce pressure to terminate employment that is both real and substantial, and which would compel a reasonable person under the circumstances to act in the same manner." Treon v. Unemployment Compensation Board of Review, 499 Pa. 455, 462, 453 A.2d 960, 963 (1982). Although there is no definitively absolute period of time upon which a "temporary" wage reduction would become so unreasonable as to compel a person to seek other employment, four to six weeks does not seem unduly harsh under the circumstances. It is, of course, unfortunate that Claimant's position was phased out. She was, however, offered a paid training program and similar work. It does not seem reasonable to reject this alternative in favor of total unemployment for an indefinite period of time.
Claimant argues that the new position, although similar, is not "suitable" within the meaning of Section 4(t) of the Unemployment Compensation Law, 43 P. S. § 753(t). We note that piece-work on mens' vests and piece-work on mens' coats are sufficiently similar as to make the adequacy of Claimants new rate of pay the only issue in this case.
Claimant also argues that there was no guarantee that after her training period she would be making the same wage as in her former job as a piece-worker sewing vests. This is true, of course, since in both positions, pay was apparently governed by proficiency. But presumably, Claimant's level of ability as a seamstress and piece-worker would remain the determining factor, and there appears to be no reason for her to believe that she would not, after her brief training period, be as proficient in the new position as in the old. Under these circumstances, Claimant's refusal to stay on long enough to attempt the new position demonstrates a failure on her part to make the good faith effort to maintain an employment relationship which is required under Section 402(b) of the Law. See Genetin v. Unemployment Compensation Board of Review, 499 Pa. 125, 451 A.2d 1353 (1982).
Accordingly, we affirm the order of the Board.
ORDER
NOW, November 20, 1984, the order of the Unemployment Compensation Board of Review No. B-214373, dated February 2, 1983, is affirmed.