J. H. Oliver, Francis B. Gelder, Scranton, for appellant.
William L. Hammond, Sp. Deputy Atty. Gen., Robert E. Woodside, Atty. Gen., Ralph P. Needle, Scranton, for intervenor.
Before Rhodes, P. J., and Reno, Ross, Arnold and Gunther, JJ.
[ 171 Pa. Super. Page 326]
The Unemployment Compensation Board of Review awarded benefits to Henry Labenski. His employer, Glen Alden Coal Company appealed, contending that the claimant was disqualified under the Unemployment Compensation Law, § 402(a), 43 P.S. § 802(a), which provides: 'An employe shall be ineligible for compensation for any week -- (a) In which his unemployment is due to failure, without good cause, either to apply for suitable work at such time and in such manner as the department may prescribe, or to accept suitable work when offered to him by the employment office or by any employer'. Labenski was allowed to intervene as an appellee.
The Law, § 4(t), 43 P.S. § 753(t), provides: 'Suitable Work' means all work which the employe is capable
[ 171 Pa. Super. Page 327]
of performing. In determining whether or not any work is suitable for an individual, the department shall consider the degree of risk involved to his health, safety and morals, his physical fitness, prior training and experience, and the distance of the available work from his residence. The department shall also consider among other factors the length of time he has been unemployed and the reasons therefor, the prospect of obtaining local work in his customary occupation, his previous earnings, the prevailing condition of the labor market generally and particularly in his usual trade or occupation, prevailing wage rates in his usual trade or occupation, and the permanency of his residence. * * *'
The Board's findings present this factual picture. Labenski, aged 32, was employed by appellant at one of its collieries from 1937 to 1949, except the 4 years he spent in the armed forces. In August, 1949, he was laid off because work at the breaker was discontinued, but soon thereafter 'he was recalled and given work as a common laborer outside the mines, helping to tear down the breaker.' Upon the completion of that work in November he was again laid off. Thereafter his employer offered him 'work inside the mines either as a contract laborer or a machine miner.' He 'refused these jobs because he had never done inside mine work and because of his fear of the possible physical injury to be incurred therein.'
The Board further found: '6. Claimant's fear of inside mine work was based upon his first-hand knowledge of the extra hazardous conditions prevailing inside mines, as well as the experiences of members of his own family while engaged in such work. His father had been seriously hurt while working inside the mines, and his brother-in-law had become disabled as the result of silicosis contracted while working therein. Accordingly, claimant's refusal of the proffered employment was predicated upon an honest fear.'
[ 171 Pa. Super. Page 328]
The Board also found: '4. During his eight years of employment with the company, claimant had been classified as a loader and runner. His work consisted on running large railroad cars under the breaker where they were loaded with coal from the breaker chutes, and once the cars were filled, he would then run them to a branch in the yard.' Discussing the suitability of the offered employment, the Board said: 'As to the question of suitability of the work from the standpoint of claimant's prior training and experience, we do not believe that there is such a difference between laboring work inside the mines and laboring work outside the mines as to render the work offered the claimant 'unsuitable' in this sense * * *.' Nevertheless, the Board awarded benefits on the theory that his fear was honest, and because he had 'a reasonable basis in fact for concluding that if he attempted to work inside the mine he would be ...