Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Thomas Romanovich, No. B-134730.
Andrew F. Erba, for petitioner.
Daniel R. Schuckers, Assistant Attorney General, with him Sydney Reuben, Assistant Attorney General, and Robert P. Kane, Attorney General, for respondent.
President Judge Bowman and Judges Mencer and Blatt, sitting as a panel of three. Opinion by Judge Blatt.
[ 32 Pa. Commw. Page 502]
This is an appeal by Thomas Romanovich (claimant) from an order of the Unemployment Compensation Board of Review (Board), dated September 16, 1976, which affirmed a referee's determination that he had been properly discharged for willful misconduct and was, therefore, ineligible for benefits under Section 402(e) of the Unemployment Compensation Law*fn1 (Act).
Prior to his discharge on November 4, 1975 (Election Day) the claimant was employed by Pili Brothers (employer) as a truck driver. The employer advised the claimant on that morning that he was required to work, and because the claimant insisted that since the collective bargaining agreement then in effect made that day, which was Election Day, a legal holiday, he
[ 32 Pa. Commw. Page 503]
did not have to work. He was immediately fired and when he later applied for unemployment compensation benefits they were denied under the Act on the basis that his refusal to work made him guilty of willful misconduct and that he was therefore ineligible for benefits under Section 402(e) of the Act.
The circumstances of this incident warrant special consideration in the determination of this appeal, and will be briefly set forth. The claimant had been employed prior to October 1, 1975 by A & E Trucking Co. for approximately four years and, as a member of the Teamsters Local No. 929 (union), was subject to a collective bargaining agreement (agreement) between A & E Trucking Co. and the union which provided, inter alia, that Election Day was a paid employee holiday. Subsequently, the claimant as well as other A & E employees became employees of Pili Brothers when that company took over a delivery contract from A & E Trucking Co. Pili Brothers stated it was going to honor the agreement between A & E Trucking Co. and the union, and the union representative also advised the claimant that the benefits available under the agreement were being continued. Furthermore, the employer representative at the hearing admitted that a list posted on the shipping room bulletin board noted Election Day as a holiday.
The claimant testified before the referee that the normal procedure regarding whether or not an employee would work on a particular holiday was that the employer would ask him the day or night before if he wanted to work and then he could either work or not at his option. He said that shortly after midnight on Election Day, he was telephoned by his employer's shipping supervisor, and, after being asked if he was coming into work, replied that he would not because he had some personal business to take care of, whereupon the supervisor said that was "okay."
[ 32 Pa. Commw. Page 504]
Later that morning between eight and nine o'clock, he said that a Mr. Thorn called, representing his employer, and asked if he was coming to work. His ...