John C. Clemmens, Body, Muth, Rhoda & Stoudt, Reading, for appellant.
William L. Hammond, Sp. Deputy Atty. Gen., Frank F. Truscott, Atty. Gen., Harrisburg, for appellee.
Before Rhodes, P. J., and Hirt, Gunther, Wright, Woodside, and Ervin, JJ.
[ 176 Pa. Super. Page 616]
The claimant in this unemployment compensation case had been in the employ of Bethlehem Cornwall Corporation, continuously since July 1950. The company
[ 176 Pa. Super. Page 617]
rule for the protection of workmen, in effect at the time he was hired provided: 'Goggles must be worn when picking, chipping, grinding, sledging, handling molten metals, or acids, or any other operation where flying particles might enter the eye. Proper colored goggles must be worn for cutting or welding.' On October 3, 1953 the company modified the above Safety Rule by 'requiring that all employee must wear protective safety glasses during working hours.' To induce compliance with the rule as modified, the following penalty was prescribed: 'Refusal to wear glasses at any time constitutes a flagrant violation and the employee must not be permitted to continue at work or return to work until he wears his glasses.' All employes had notice of the above change in the Safety Rule and of the penalty for violation of it. On October 12, 1953, claimant was directed to check out and leave the plant before the end of his shift when he refused to wear safety glasses. He had violated the rule on at least four previous occasions in the face of repeated warnings that he must comply with the regulation. The claimant however was not discharged and his contract of employment was not terminated. The action was merely a disciplinary measure, in accordance with the provisions of the Safety Rule, imposed on claimant 'for insubordination in refusing to put on safety glasses when requested to do so by his superior.' He remained an employe of the company and his basic status as such was not affected by the disciplinary action. On October 15, 1953, the company by letter notified claimant that his return to work depended upon his willingness not only to wear safety glasses at all times during working hours but also to abide by all other safety rules in effect at the plant. The notice stated also that if 'he did not return to his position by October 26, 1953, under the conditions
[ 176 Pa. Super. Page 618]
stipulated he would be terminated as having left his employment voluntarily. By communications dated October 20 and October 22 the claimant advised the employer he would not return under the conditions set forth by the employer and [he] did not return. Subsequent to October 26, 1953, the claimant's name was removed from the payrolls of the company.' We have quoted from the findings of the Referee based upon testimony as to which there is no dispute.
On October 23, 1953 claimant applied for unemployment compensation benefits. He subsequently lodged a grievance with his union, a local of United Steel Workers of America. The union filed a complaint in accordance with the procedure set up in its labor contract with the company, but in the midst of the proceedings withdrew the complaint and accepted the decision of the company. All of the facts to which we have referred are reflected in the findings of the Referee based upon competent testimony. Because of claimant's failure to return to his work on or before October 26, 1953, in accordance with the company's notice to him, the Referee ruled 'that he left his employment voluntarily without good cause and must be disqualified under the provisions of Section 402(b) * * *' of the unemployment compensation law as last amended by the Act of May 23, 1949, P.L. 1738, 43 P.S. § 802. The Board on appeal, after hearing additional testimony, adopted the findings and conclusions of the Referee and affirmed the order denying benefits.
Section 402(b) provides: 'An employe shall be ineligible for compensation for any week * * *. In which his unemployment is due to voluntarily leaving work without good cause'. As to the test to be applied in determining whether there is good cause for voluntarily leaving work by an employe we have said: 'The vitalizing element of ...