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MCGOWAN UNEMPLOYMENT COMPENSATION CASE. GRANT BUILDING v. UNEMPLOYMENT COMPENSATION BOARD REVIEW (09/15/66)

decided: September 15, 1966.

MCGOWAN UNEMPLOYMENT COMPENSATION CASE. GRANT BUILDING, INCORPORATED, APPELLANT,
v.
UNEMPLOYMENT COMPENSATION BOARD OF REVIEW



Appeal by employer, from decision of Unemployment Compensation Board of Review, No. B-86606-A, in re claim of Andrew A. McGowan.

COUNSEL

E. B. Strassburger, with him E. B. Strassburger, Jr., and Strassburger and McKenna, for appellant.

Sydney Reuben, Assistant Attorney General, with him Walter E. Alessandroni, Attorney General, for Unemployment Compensation Board of Review, appellee.

Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. Opinion by Wright, J. Dissenting Opinion by Montgomery, J. Watkins, J., joins in this dissenting opinion.

Author: Wright

[ 208 Pa. Super. Page 281]

Andrew A. McGowan was last employed as a janitor by Grant Building, Inc., in the City of Pittsburgh. His final day of work was August 5, 1963. The Bureau of Employment Security granted his application for benefits. The Referee reversed the Bureau's decision on the ground that claimant was disqualified for wilful misconduct under Section 402(e) of the Unemployment

[ 208 Pa. Super. Page 282]

Compensation Law. Act of December 5, 1936, P. L. (1937) 2897, 43 P.S. 751 et seq. The Board of Review affirmed the decision of the Referee, but based claimant's disqualification on voluntarily leaving work without cause of a necessitous and compelling nature under Section 402(b)(1) of the statute. Claimant then appealed to this court. Upon petition of the Board of Review, we remanded the record for further study and consideration. The Board of Review thereafter vacated its initial decision and substituted a decision allowing benefits. The employer has appealed.

This case has given us considerable concern. It has been argued and reargued. An unusual factual situation is presented. It is really a contest between claimant and Local No. 29, Building Service Employes Union. The employer stands innocently in the middle. Local No. 29, a bona fide union, became the bargaining agent for the employes in 1945. As a part of the agreement entered into with the employer, it was necessary for all employes to become members of the union. Claimant was then an employe but was in military service. Upon his return to work he did not join the union. For some unexplained reason, this fact was not ascertained until eighteen years later. The record supports the following pertinent findings by the Board of Review: "4. Claimant was never requested to join the local union until August 5, 1963. 5. The claimant was given the opportunity to join the union upon a payment of $51.00, which included $15.00 for initiation fee, and dues for the year 1962-1963. 6. The claimant refused to pay the $51.00 and thereby became unemployed".

The record discloses that, when claimant's nonunion membership became apparent, the employer interceded with the union on his behalf. Instead of requiring claimant to pay full back dues for eighteen years, the union agreed to afford claimant the opportunity to

[ 208 Pa. Super. Page 283]

    place himself in good standing for the comparatively nominal sum of $51.00. The Board of Review reasoned originally that this was a fair adjustment and that, since claimant did not avail himself of the opportunity, "he did not exert reasonable effort to maintain the employer-employee relationship". The Board's change of position was based on its interpretation of the intervening decision of our Supreme Court in Gianfelice Unemployment Compensation Case, 396 Pa. 545, 153 A.2d 906, discussed hereinafter.

Section 402(b)(1) of the statute (43 P.S. 802(b)(1)) provides in pertinent part as follows: "An employe shall be ineligible for compensation for any week . . . (b)(1) In which his unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature . . . And provided further, That no employe shall be deemed to be ineligible under this subsection where as a condition of continuing in employment such employe would be required to join or remain a member of a company union or to resign from or refrain from joining any bona fide labor organization". This language was construed by this court in O'Donnell Unemployment Compensation Case, 173 Pa. Superior Ct. 263, 98 A.2d 406. In that case, we affirmed the denial of benefits to a claimant whose continued employment required maintenance of her union membership in good standing, but whose employment was necessarily discontinued by her employer, in accordance with the collective bargaining agreement, because claimant refused to pay a reinstatement fee of $25.00. As therein stated: "But claimant's unemployment resulted from her own fault, in that it was incurred entirely through her own procrastination, indifference, and arbitrary attitude. She was responsible for the situation, which could have been reasonably avoided, but which forced her employer to dispense with her services".

[ 208 Pa. Super. Page 284]

To the same effect is Butler Unemployment Compensation Case, 189 Pa. Superior Ct. 605, 151 A.2d 843, wherein we affirmed the denial of benefits to a claimant who refused to join a bona fide labor organization with which the employer had a collective bargaining agreement. As stated in that case: "We are now definitely ruling that a claimant who fails or refuses to join or remain a member of a bona fide labor organization, as a condition of continuing in employment under the contract between such organization and employer, does not have a cause of a necessitous and compelling nature for leaving his work". Although the statute has since been amended many times, the legislature has not made any substantial change in the language of the proviso in Section 402(b)(1) here under ...


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