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WOODSON v. UNEMPLOYMENT COMPENSATION BOARD REVIEW (4 CASES) (02/09/73)

decided: February 9, 1973.

WOODSON
v.
UNEMPLOYMENT COMPENSATION BOARD OF REVIEW (4 CASES)



Appeals from the Orders of the Unemployment Compensation Board of Review in cases of In Re: Claim of Gary Woodson, No. B-111608; In Re: Claim of Lewis Woodson, No. B-111610; In Re: Claim of Ronald Woodson, No. B-111609; and In Re: Claim of Lester Woodson, No. B-111611.

COUNSEL

Harold I. Goodman, Community Legal Services, Inc., for appellants.

Sydney Reuben, Assistant Attorney General, with him J. Shane Creamer, Attorney General, for appellee.

Judges Crumlish, Jr., Wilkinson, Jr., and Mencer, sitting as a panel of three. Opinion by Judge Mencer.

Author: Mencer

[ 7 Pa. Commw. Page 527]

In James v. Unemployment Compensation Board of Review, 6 Pa. Commonwealth Ct. 489, 296 A.2d 288 (1972), we recognized that racial discrimination could be the compelling and necessitous cause for a voluntary termination of employment and, where the record disclosed by substantial evidence that such was the fact, the claimant would be entitled to unemployment compensation benefits.

We are concerned here with appeals in four cases from four orders of the Unemployment Compensation Board of Review (Board) disallowing appeals from adjudications of a Referee denying the claims of four

[ 7 Pa. Commw. Page 528]

    brothers for unemployment compensation. These appeals raise the question of racial discrimination, not as a factor of a voluntary termination, but as a factor of dismissal by the employer.

Gary Woodson, Lewis Woodson, Ronald Woodson and Lester Woodson (Woodsons) are four brothers who had been employed as tree climbers and groundmen by Asplundh Tree Expert Company (Asplundh), of Jenkintown, Pennsylvania. Their periods of employment with Asplundh ranged from approximately one and one-half years to three and one-half years, and their last day of employment was October 13, 1970. According to Henry Carr, Asplundh's general foreman, the Woodsons "were good workers."

However, on October 13, 1970, Lester Woodson was informed by his crew foreman that he should tell his brothers that the Woodsons were not to come to work the next day. That evening Ronald Woodson called the general foreman, Henry Carr, for some explanation and Mr. Carr responded with these words: "I do not feel right working you if I can't work your brothers, so stay home until further notice." Carr was immediately asked by Lester if he was being fired and Carr responded, "No, I didn't use the word 'fire'." This testimony is undisputed in the record. Nevertheless, the Woodsons did not again work for Asplundh and, when they applied for unemployment compensation, Asplundh responded by asserting that they had been discharged for absenteeism and tardiness.

The Referee and the Board found that the Woodsons were discharged on October 13, 1970, for absence from work and tardiness which constituted willful misconduct within the meaning of the provisions of Section 402(e) of the Pennsylvania Unemployment Compensation Law, Act of December 5, 1936, Second Ex. Sess., P.L. ...


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