Appeal, No. 143, Oct. T., 1958, by employer, from decision of Unemployment Compensation Board of Review, December 24, 1957, No. B-45496-C, in re claim of Anthony J. Gagliardi. Decision reversed.
Duncan O. McKee, with him Hamilton C. Connor, Jr., and Ballard, Spahr, Andrews & Ingersoll, for appellant.
Sydney Reuben, Assistant Attorney General, with him $Thomas D. McBride, Attorney General, for appellee.
Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.
[ 186 Pa. Super. Page 144]
This is an appeal by the Philadelphia Transportation Company from an award of unemployment compensation by the Board of Review to Anthony J. Gagliardi, one of the company's employes.
The claimant, who had been employed in the mechanical department of the company to service buses, was discharged on February 6, 1957. Subsequently,
[ 186 Pa. Super. Page 145]
according to the terms of the collective bargaining agreement under which the claimant was employed, the discharge was referred to arbitrators who ordered Gagliardi reinstated in his job without any back pay. He returned to work with the appellant on May 14, 1957. He applied for unemployment compensation for the weeks ending March 28th and April 4th.
The bureau refused compensation on the ground that claimant was discharged for willful misconduct connected with his work. After taking testimony, the referee made findings of fact, and agreed with the bureau's conclusion. Upon appeal by the claimant to the Board of Review, it reversed the referee, ignoring his findings and basing its conclusions solely upon the decision of the arbitrators.
This was error. The board should have based its findings upon the evidence before the referee, and not upon the report of the arbitrators. We would be required to remand the case to the board for findings on the record were the decisive facts in dispute.
The evidence introduced before the unemployment compensation referee establishes that on the morning of February 5, 1957, during the claimant's scheduled hours of employment, he took his own automobile into the company's garage and was found there washing it in violation of the company's rules. This was not his first violation of his employer's rules. On December 15, 1956, during claimant's scheduled working hours, he was found in a barbershop reading a paper. Even before that event, the claimant's employment record was poor. Immediately prior to September 21, 1956, for seven consecutive nights he was low man in performance out of the team of seven ...