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DARIN UNEMPLOYMENT COMPENSATION CASE. (01/18/60)

January 18, 1960

DARIN UNEMPLOYMENT COMPENSATION CASE.


Appeal, No. 104, March T., 1959, from judgment of Superior Court, April T., 1958, No. 33, affirming decision of Unemployment Compensation Board of Review, No. B-4-B-674, in re claim of Evelyn Darin. Judgment reversed. Same case in Superior Court: 188 Pa. Super.Ct. 282. Proceedings in Superior Court on appeal from Unemployment Compensation Board of Review. Superior Court affirmed decision, opinion by WOODSIDE, J. Appeal to Supreme Court allowed.

COUNSEL

James Craig Kuhn, Jr., with him Arnold D. Wilner, and Wilner, Wilner and Kuhn, for claimant, appellant.

Sydney Reuben, Assistant Attorney General, with him Anne X. Alpern, Attorney General, for Unemployment Compensation Board of Review, appellee.

Thomas M. Cooley, II, with him Marjorie Hanson Matson, Martin Lubow, and H. David Rothman, for American Civil Liberties Union, amicus curiae.

Before Jones, C.j., Bell, Jones and Bok, JJ.

Author: Bok

[ 398 Pa. Page 261]

OPINION BY MR. JUSTICE BOK

Appellant was employed by Westinghouse Electric Corporation as a machine operator since 1929. In December, 1954, she was discharged. At the time of her discharge she was ill in a hospital. Presumable by reason of having been named as a member of the Communist Party by persons available to the Senate Permanent Subcommittee on Investigations, she was subpoenaed to appear before it. Being then ill she presented a doctor's certificated and was excused. She was not summoned again. Hence she never appeared before the Committee and had no opportunity to deal with the accusations made there against her.

Westinghouse also failed to interview or hear her and discharged her by telegram sent to her in the hospital without giving a reason. Later it reported to the Unemployment Compensation authorities that she had been "released as an undesirable employee."

Appellant later applied for unemployment compensation benefits and appeared for the first time anywhere before the Referee, where she took the protection of the Fifth Amendment to the United States Constitution and refused to answer the question: "Were you ever a member of the Communist Party?" She was not asked whether she was a current member. The Referee then asked the Board's interviewer for a statement, which was as follows: "Miss Darin was an undesirable employee due to left wing activities and associations which have been widely publicized, bringing

[ 398 Pa. Page 262]

    discredit upon the Westinghouse, its stockholders and thousands of loyal employees. She has been accused in sworn testimony before appropriate government authorities of communist party activities. Management believes her continued employment in this defense industry clearly not within the best interests of Westinghouse and its employees, the general public, and national security. Evelyn Darin has been identified as a member of the Communist Party by Peter T. Leydon, a Westinghouse employee testifying under subpoena; Francis Nestler, self-identified former Communist; and, by Mary S. Beynon, who joined the Communist Party in 1946, with the advance notice of the Federal Bureau of Investigation, as an undercover agent. In view of this record of undenied Communist connections, and the discredit it has brought upon Westinghouse, as well as the element of national security involved, this employe is released as of December 29, 1954, her last day of work."

The Referee found that appellant's invoking the Fifth Amendment was "wilful misconduct in connection with the work", and denied compensation. The Board of Review and the ...


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