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September 16, 1959


Appeal, No. 43, April T., 1959, by employer, from decision of Unemployment Compensation Board of Review, No. B-4-M-2331, in re claim of Anthony J. Zikesh. Proceeding remanded to board.


Margaret M. Morrison, for appellant.

Sydney Reuben, Assistant Attorney General, with him Anne X. Alpern, Attorney General, for appellee.

Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.

Author: Hirt

[ 190 Pa. Super. Page 343]


Anthony J. Zikesh was an experienced car operator; he had been in the employ of Pittsburgh Railways Company for a period of about 12 years. He was discharged on February 26, 1958 for willful misconduct in connection with his work. The bureau found that the employer was justified in discharging him on that ground under § 402(e) of the Law, 43 PS § 802, and benefits were disallowed. On appeal a hearing was held before the referee on April 28, 1958.On the evidence submitted, the referee affirmed the decision of the bureau. Thereafter, however, on claimant's application, the board remanded the proceedings to the referee for further hearing at which time claimant either categorically denied or attempted to explain away the charges of the various complaints against him. In the meantime the matter of claimant's discharge had been ruled out to arbitration by the union in accordance with a provision of the contract between the union and the company. On July 8, 1958 the Board of Arbitration made an award reinstating claimant to his former work as an employe of the company.

The referee in his decision made the following findings of fact: "2. During the course of his employment the claimant had been warned that his operating performance and contacts with passengers must improve. 3. Subsequent to the warnings the employer received complaints from passengers that claimant had treated them discourteously. 4. A month prior to his discharge claimant's entire record was reviewed with him, and he was warned that unless he showed immediate and sustained improvement, dismissal would follow. 5. On February 20, 1958 the claimant's discourteous treatment of a passenger resulted in a complaint to the employer.

[ 190 Pa. Super. Page 344]

After investigation and review of the complaint, claimant's discharge was effected February 26, 1958." Based upon the above findings the referee concluded: "The claimant's attitude and conduct were contrary to the standard of behavior an employer has a right to expect of an employe, and were detrimental to the employer's best interests. Under these circumstances, the claimant's discharge was disqualifying under the provisions of Section 402(e) of the Law."

The findings were amply supported by the evidence. There was testimony of the employer's General Superintendent of Transportation that throughout the period 1946 to 1955 claimant's performance as a car operator was unsatisfactory; he had been involved in occurrences involving complaints from passengers; of violation of company rules, and neglect to obey orders. On April 10, 1956 specifically, there were complaints from passengers that he had passed them by at a regular stop. And in violation of an operating rule claimant had failed to display the proper destination sign on his car. On that date he was warned in the presence of the business agent of his union that he would be dismissed from company service if his operating performance did not improve. On another occasion he deliberately carried a passenger beyond her requested stop and was discourteous to her. There was evidence of his violation of company operating instructions on two other occasions. On January 13, 1958 he pulled away from a stop without waiting for the transfer passengers from another car, although signaled by the car to his rear that there were passengers for transfer. Following this incident claimant was again warned as to the seriousness of his derelictions. On January 24, 1958 he failed to follow instructions resulting in delay and inconvenience to passengers. Following this incident his entire record was reviewed with him and he was warned as stated in the referee's 4th finding. Notwithstanding

[ 190 Pa. Super. Page 345]

    this warning, within one month later, complaints were lodged with the company by two passengers that he had passed them up at two successive stops. He was also discourteous to a passenger who had requested a transfer. Claimant tore the transfer from the holder and threw it on the floor and an argument ensued. "Because of continuing complaints from passengers, violations of ...

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