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decided: December 14, 1977.


Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Aaron K. Williams, No. B-134350.


Harry Cohen, for petitioner.

Susan Shinkman, Assistant Attorney General, with her 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.

Author: Blatt

[ 32 Pa. Commw. Page 643]

This is an appeal by Aaron K. Williams (claimant) from an order of the Unemployment Compensation Board of Review (Board), 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 (Act).*fn1

Prior to his discharge, the claimant had been employed as a ship fitter by Sun Ship Building and Dry Dock Company (employer) for eleven months. The applicable collective bargaining agreement provided that an employee absent for seven days must notify the employer of his absence every seventh day in writing and that an employee absent for fifteen days without such notification will be discharged. The referee found that the claimant had injured his wrist at work, that he was sent to the company dispensary where he was treated and instructed to report to his private physician, and that he reported to the employer his physician's recommendation that he remain off work for two weeks. As to the notice given, the claimant testified before the referee that he had telephoned a Miss Hite, the employer's insurance representative, so as to inform the employer that he would be absent

[ 32 Pa. Commw. Page 644]

    for two weeks under the advice of his doctor, and that she had merely told him to bring a doctor's slip when he returned to work. The employer's representative testified, however, that Miss Hite was trained to remind employees of the requirement to provide the company with a written certificate every seven days, and also that the orientation training given to all employees emphasized the seven-day notice requirement and the fifteen-day automatic termination of employment when notice is not given as required. Here, although the claimant said that he had reported to the employer and although he testified that he was unaware of the written notice requirement, the Board accepted the employer's testimony on the issue and concluded that, by violating the employer's regulations and the provisions of the union contract, the claimant was guilty of willful misconduct.

The record here reveals no history of prior absences by the claimant without authorization or without conformity to company rules, but it does contain unrefuted testimony that the claimant had been previously absent from work because of an injury for a period of nearly four months and that he was never then required to fill out any report for his employer except periodic disability insurance forms. The claimant argues that, because he had no knowledge of the seven-day written notice rule, because he had not been required to follow it previously, because there had been no prior warning of threatened discharge, and because the employer had notice of the reasons and circumstances of his absence, this technical violation of the rule in failing to submit a written notice as to his last absence cannot be characterized as willful misconduct. The issue, therefore, is whether or not this single incident of claimant's failure to report his absence in the manner prescribed by the collective bargaining agreement rises to the level of willful misconduct

[ 32 Pa. Commw. Page 645]

    within the purview of Section 402(e) of the Act. It is not, we would emphasize, whether or not the employer had the right to discharge the claimant for the questioned conduct, but rather whether or not the Commonwealth is justified in reinforcing that decision by denying benefits under this Act for the conduct in question. Frumento v. Unemployment Compensation Board of Review, 466 Pa. 81, 86, 351 A.2d 631, 634 (1976); Unemployment Compensation Board of Review v. Bacon, 25 Pa. Commonwealth Ct. 583, 586, 361 A.2d 505, 507 (1976).

Section 510 of the Act, 43 P.S. ยง 830, provides that this Court's scope of review in unemployment compensation appeals is confined to questions of law and, absent fraud, to a determination of whether or not the findings of fact are supported by the evidence. Whether or not actions of an employee constitute willful misconduct so as to render him ineligible for unemployment compensation benefits following his discharge from employment is a question of law subject to judicial review. Nyzio v. Lee Tire & Rubber Co., 26 Pa. Commonwealth Ct. 600, 364 A.2d ...

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