What You Need to Know: Appealing the Decision of an Unemployment Referee to the Pennsylvania Unemployment Compensation Board of Review
WHAT IS THE UCBOR?
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| UCBOR: Very Fair, in my Experience |
The Pa Unemployment Compensation Board of Review (“UCBOR”) is the first level of appeal from Decisions rendered by Referees. I believe it is fair to say that UCBOR considers and decides thousands of appeals per year. If one disagrees with the UCBOR’s decision, the next step is an appeal to the court system, and specifically to the Commonwealth Court.
UCBOR – WHO ARE THESE PEOPLE?
The UCBOR is comprised by three people who are appointed by the Governor of Pennsylvania to 5 year terms. In 2013, those three people are:
Richard W. Bloomingdale - Chairperson
Eileen B. Melvin - Member
Larry Dunn - Member
Eileen B. Melvin - Member
Larry Dunn - Member
These 3 have been the UCBOR since at least 2006, so they have a lot of experience – they have seen it all! Their appeal decisions are not published anywhere (there would be tens of thousands, I am sure), so there is no way to track “precedent” where UCBOR decisions are concerned.
Therefore, the only way to determine what one’s odds are for winning a case is to examine decisions from Pennsylvania’s Commonwealth Court, which decides all appeals taken from UCBOR decisions.
Despite the absence of UCBOR precedent, it is possible to get a sense as to the UCBOR’s predilections (i.e. possible lean towards employer versus employee), by examining the credentials of the Board Members themselves. So, let’s do that.
Richard W. Bloomingdale - Chairpersonis an interesting person, a labor union activist who has served as President of the Pennsylvania AFL-CIO since 2010. I believe he is from the Carlisle, since he lectures at the War College there. He was appointed to the UCBOR by Governor Rendell(R). He has been the Chairman of the UCBOR since 2005. One would think he is liberal where employee rights are concerned.
Eileen B. Melvin - Member has served on UCBOR since 2002. She identifies herself as a businesswoman and President and CEO of UMF Medical since 2009. This company is located in the Johnstown area, and makes medical equipment for health care facilities. It does well, apparently.
She was appointed to UCBOR by Governor Schweiker(R) in 2002 and reappointed by Governor Rendell in 2007. It has been reported that in 2012, Governor Tom Corbett(R) appointed her as Chairman of the UCBOR, but as of this date (12/5/12), Mr. Bloomingdale serves in that capacity.
In 1996, Melvin was unanimously elected Vice-Chair, and later Chair of the Republican State Committee of Pennsylvania, serving a total of 10 years through numerous victories, including the election of Governor Ridge, U.S. Senators Rick Santorum and Arlen Specter, and winning majorities of the PA Congressional delegation, State Legislature, and Appellate Courts. She was appointed by Senators Specter and Santorum to the Federal Judicial Nominating Committing and served for 12 years.
Given her career arc, status as business owner and political affiliations, it may be fair to assume that Ms. Melvin leans towards employers.
Larry Dunn is from Delaware County and, like Mr. Bloomingdale, is an employee advocate who has been involved with unions. He was appointed to UCBOR by Governor Rendell in 2006; at that time, he was president of the Philadelphia Metropolitan Regional Council of Carpenters, was secretary of the Philadelphia Joint Apprenticeship Committee and served as an alternate delegate to Team Pennsylvania Foundation's Executive Committee, which fosters public-private collaboration for building a business-friendly economic environment in the commonwealth. Presumably, Mr. Dunn was subsequent to 2011 reappointed to an additional 5 year term on UCBOR by Governor Corbett.
All in all, an evaluation of the UCBOR suggests that it is at a minimum fair to employees. That has been my experience as well.
HOW DOES THE UCBOR WORK?
I must confess that I am not sure! It seems apparent, given their locations and vocations, that they do not gather together in Harrisburg to decide appeals. So I am guessing, and it is only a guess, that they have a staff of paralegals/clerks/assistants who review appeals in Harrisburg and make recommendations to the Board Members about how cases should be decided, which are then approved by the Board, or subject to further analysis and discussion among Board Members. That is probably the best explanation for how the 3 Members of the UCBOR can make thousands of decisions per year while gainfully employed in their own careers.
HOW DOES THE PENNSYLVANIA UNEMPLOYMENT COMPENSATION BOARD OF REVIEW DECIDE APPEALS FROM REFEREE DECISIONS?
First thing that you must understand is that this is a paper review. That is, the UCBOR never, ever conducts a hearing, and always bases its decision on 1) what was said at the Referee Hearing; 2) the evidence presented at the Referee Hearing; and, 3) the law as decided by the Pennsylvania’s appellate courts on cases involving similar facts and evidence.
The Board must follow the law – the law established by its higher authorities, the Commonwealth Court and, above that, the Pennsylvania Supreme Court. So, the best way to determine your chances for winning an appeal from a Referee’s Decision are to find and examine cases dealing with similar facts decided by the Commonwealth Court. Of course, while this may be like finding a needle in a haystack for the average Claimant, this is precisely the type of research that lawyers conduct on a regular basis.
There are two ways to appeal a Referee Decision to the UCBOR. The first is to simply file an Appeal and do nothing more. In that case, the UCBOR will review the transcript and exhibits from the Referee Decision and make a decision as to whether to uphold the Referee without any further input from you.
The second is to file an Appeal, request a copy of the transcript and exhibits, and then file a Brief after review of same, citing relevant evidence presented at the Hearing and applicable precedent in your favor.
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