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LEE ROY TUCKER v. COMMONWEALTH PENNSYLVANIA (07/09/74)

decided: July 9, 1974.

LEE ROY TUCKER, APPELLANT,
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, APPELLEE



Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Lee Roy Tucker, No. B-118179.

COUNSEL

Janet F. Stotland, for appellant.

Sydney Reuben, Assistant Attorney General, with him Israel Packel, Attorney General, for appellee.

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

Author: Wilkinson

[ 14 Pa. Commw. Page 263]

The Bureau of Employment Security, the referee, and the Unemployment Compensation Board of Review have all disapproved the appellant's claim in this case. Before these three decision-makers, claimant was not represented by legal counsel. Had he been, and had able counsel who represented him before this Court developed a record for him that would have convinced the Board that the employer, the Philadelphia Inquirer, did agree that he would not be transferred out of the West Philadelphia area, there would be basis for him to assert that the record would support him. However, that is not the case on the record before us.

It is not necessary to cite a long string of authorities for the well-established principle that the findings of the Board as to facts, if supported by the evidence, are conclusive. Philadelphia Coke Division, Eastern Associated Coal Corporation v. Unemployment Compensation Board of Review, 6 Pa. Commonwealth Ct. 37, 293 A.2d 129 (1972). Here, by affirming the referee and the Bureau in denying benefits, the Board has necessarily concluded that there was no such agreement between claimant and his employer.

[ 14 Pa. Commw. Page 264]

A careful review of the record leads us to hold that there is more than sufficient basis in claimant's own statements for the Bureau, the referee, and the Board to rule that the employer had not agreed at the time of claimant's employment to never reassign him. Normally, when any person is employed, he is employed to do a particular task at an assigned time, and at an assigned place. It does not follow that the employer agrees never to modify or change the task, the time, or the place. If the employer should decide to modify or change any of these and the change is reasonable, the employee must abide by the employer's decision at the risk of being ineligible for unemployment compensation if he refuses. Druzak v. Unemployment Compensation Board of Review, 12 Pa. Commonwealth Ct. 481, 315 A.2d 925 (1974).

On his initial application for benefits, claimant told the Bureau that the reason for his separation was that his job was eliminated. On the summary of interview, claimant stated his reason for unemployment was that he refused a transfer because the area to which he was being transferred was too dangerous. On claimant's petition for appeal, the reason given for his unemployment was that his job was being eliminated and he refused transfer 20 miles away to a more dangerous area when jobs were available in his old district. He further stated on this form that the transfer was being used as a method of terminating his employment because he wanted overtime pay.

At the hearing before the referee, claimant for the first time stated that he requested at the time of his employment that he should not be assigned to Northwest Philadelphia and the employer agreed. However, there are many of claimant's statements at the same time that modify this substantially. For example, in almost the next sentence in the record, claimant states that a fellow-worker had recently been assigned to the

[ 14 Pa. Commw. Page 265]

Northwest Philadelphia area and he, claimant, had not been because the employer knew that he did not want to go, and that Northwest Philadelphia was closer for the fellow-worker. This seems to us to say that the employer tried at that time to accommodate claimant when it reasonably could, but certainly was not ...


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