Renda v. Unemployment Compensation Board of Review

Judge FRIEDMAN

concurring and dissenting.

I agree with the majority’s conclusion that the appeal of claimant Mary Agnes Kane was untimely. However, I strongly *696 disagree with the majority’s decision with respect to the remaining claimants. I do not concur with the majority’s holding that Mansberger v. Unemployment Compensation Board of Review, 785 A.2d 126 (Pa.Cmwlth.2001), and Staub v. Unemployment Compensation Board of Review, 673 A.2d 434 (Pa.Cmwlth.1996), are controlling, because those cases are factually distinguishable from the situation now before us.

In Mansberger , the employer informed the claimant that lost jobs probably would be filtered to other sections. In contrast, Claimants in this case received no information from Employer indicating that continuing work would likely be available to them. In fact, Claimants observed that, because Employer’s offer was made to all departments, the prospect of a transfer appeared remote. In Staub , the claimant testified that his primary reason for accepting an early retirement incentive plan was the opportunity to retire at the age of fifty-two. Unlike the claimant in Staub , Claimants here testified that they had no desire to retire early and would have continued working had they not felt compelled by the totality of the circumstances to accept Employer’s offer.

The majority likens this case to Mans-berger and Staub , pointing out that, as in those cases, Employer here did not expressly inform Claimants that their jobs would be eliminated. (Majority op. at 693). However, because Employer here refused to provide Claimants with any information concerning the likelihood of continuing employment, I believe Claimants did not need to establish that Employer “affirmatively stated ... layoffs would occur,” (Majority op. at 693), in order to be entitled to benefits.

Although Employer did not expressly state that Claimants would be laid off, Claimants could reasonably infer from Employer’s conduct that layoffs were indeed imminent. In this case, the only information provided to Claimants regarding the possibility of layoffs was a description of the enhanced income security plan (EISP) and an e-mail advising them that, because Employer “has experienced significant declines in customer demands,” it was “offering a force adjustment program as part of our contractual requirements.” (Hearing May 7, 2002, Record Exhibit C-2 (emphasis added).) In response to requests for additional information, Claimants were advised to consult their collective bargaining agreements for more details. The plain language of the collective bargaining agreements distinguished between circumstances where Employer deemed it appropriate to offer an ISP and circumstances where Employer was required to offer an EISP, i.e., prior to proceeding to a layoff. Having to decide whether to accept the EISP offer on the basis of this information alone, I believe that Claimants justifiably felt compelled to choose early retirement in the face of likely job loss.

We are required to look at the circumstances surrounding a claimant’s departure from the claimant’s point of view. PECO Energy Co. v. Unemployment Compensation Board of Review, 682 A.2d 49 (Pa.Cmwlth.1996), appeal denied, 547 Pa. 739 , 690 A.2d 238 (1997). The totality of the circumstances surrounding Employer’s early retirement offer include Claimants’ desire to continue working, notice that Claimants were in a work group subject to a force adjustment, declines in customer demand and corresponding reductions in available work and staffing, the language of the EISP offer and Employer’s reference to the terms of the collective bargaining agreements, which reflect that the offer of early retirement must be made prior to layoffs. Unlike the majority, I would *697 hold that these circumstances constitute real and substantial pressures on Claimants to accept Employer’s enhanced early retirement offer.

Therefore, I would reverse.

Judge SMITH-RIBNER joins this dissent.