BOARD OF APPEALS
DATE: December 9, 1995
Francis F. Borkowicz
|| APPEAL NO.:
Airco Welding Company
Whether the claimant is receiving or has received a governmental or other pension, retirement or retired pay, annuity or other similar periodic payment which is based on any previous work of such individual, which is equal to or in excess of his weekly benefit amount within the meaning of §6(g) of the law, and whether the claimant is overpaid benefits within the meaning of §17(d) of the law.
- NOTICE OF RIGHT OF APPEAL TO COURT -
YOU MAY FILE AN APPEAL FROM THIS DECISION IN ACCORDANCE WITH THE LAWS OF
YOU MAY FILE AN APPEAL FROM THIS DECISION IN ACCORDANCE WITH THE LAWS OF MARYLAND. THE APPEAL MAY BE TAKEN IN PERSON OR THROUGH AN ATTORNEY IN THE CIRCUIT COURT OF BALTIMORE CITY, OR THE CIRCUIT COURT OF THE COUNTY IN MARYLAND IN WHICH YOU RESIDE.
THE PERIOD FOR FILING AN APPEAL EXPIRES AT MIDNIGHT ON January 8, 1986.
For the Employer:
Upon review of the record in this case, the Board of Appeals affirms the decision of the Hearing Examiner.
The Board agrees that the non- contributory pension received by the claimant is deductible from unemployment insurance benefits under §6(g) and is not a dismissal payment or wages in lieu of
notice (also referred to as "severance pay") under §6(h) (in which case it would not be deductible because the employer permanently discontinued the operation of the plant).
The Board has dealt with similar, though not identical, issues in prior cases. In the Board precedent case Carey v. Stewart & Co., 717- BH-83, the Board concluded that a special "non-vested pension benefit", paid to employees at the time the employer was permanently closing its operations, was dismissal pay as contemplated by §6(h) because: (1) the money to fund it was not obtained from a pension fund and (2) the money was specifically intended as additional severance pay by the employer, for certain employees who, because of the closing of the stores, had lost the opportunity to gain vested pension rights.
This is a factually different situation from the case here, where the pension money is from a pension fund, set up long before the plant's closing was contemplated and where all employees
in the" pension plan are receiving benefits. There no evidence that this pension was specifically intended as dismissal pay.
Further, in Jancewski v. Bethlehem Steel Corporation, 2150-BH-83, the Board ruled that special retirement pay was not severance pay under §6(h), but was deductible under §6(g) , because it was a part of the regular pension plan and was paid only to those employees who qualified for and applied for the pension.
The shutdown agreement in this case, (Claimant's Exhibit No. 4) does make provision to allow certain employees who are plan participants but not vested in their accrued benefit under the plan to vest as of December 20, 1984. However, this one accommodation does not alter the Board's conclusion that the payments in question are in the nature of a pension. The shutdown agreement, in fact, specifically provides for the receipt of "severance pay" in a separate section.
In argument, the claimant's attorney has cited the case of Guilfoyle v. Dow Jones & Co., 218 N.Y.S. 2nd 617 (1971), where the New York Court held that pension benefits paid after a plant
shutdown do not constitute the taking of a retirement pension, but the taking of severance pay. However, that case is legally and factually distinguishable from this case in a very important way. The Court in Guilfoyle placed great importance on the fact that the claimant did not actually retire at the time he received the pension, because the law in effect in New York at
that time, as cited in Guilfoyle stated, in appropriate part:
If a claimant retires or is retired from employment by an employer and, due to such retirement, is receiving a pension or retirement payment under a plan financed in whole or in part by such employer, such claimant's benefit rate ... shall be reduced as hereinafter provided. Guilfoyle, supra at 619.
Thus the statute upon which that case was based was very different from the present Maryland statute, §6(g), which has no requirement that the claimant actually be retired in order for the pension to be deductible from benefits. Further, there is no evidence in this case before the Board regarding whether this claimant actually retired (and under Maryland law, none is required). therefore, the Board does not find the case cited by the claimant to be persuasive. The decision of the Hearing Examiner will be affirmed.
The claimant is receiving or has received a pension or other similar periodic payment amounting to $48.00 per week. This amount must be deducted from the claimant's weekly benefit amount of $175, according to §6(g) of the Maryland Unemployment Insurance Law. The claimant is eligible for reduced benefits in the amount of $127 per week. This reduction in benefits is effective beginning with the week ending May 4, 1985 and extends until this pension is no longer received in this amount or until Airco Welding is no longer - a base period employer of this claimant.
The claimant is overpaid benefits in the amount of $336.00 for the period from the week ending May 4, 1985 until the week ending June 15, 1985.
The decision of the Hearing Examiner is affirmed.
Hazel A. Warnick, Associate Member
Thomas W. Keech, Chairman
I concur in the result.
Maurice E. Dill, Associate Member
COPIES MAILED TO:
I. Duke Avnet, Esquire
Thomas B. Murphy
United Steel Workers of America
UNEMPLOYMENT INSURANCE - EASTPOINT