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JOSE A. HERNANDEZ v. COMMONWEALTH PENNSYLVANIA (01/31/78)

decided: January 31, 1978.

JOSE A. HERNANDEZ, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT



Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Jose A. Hernandez, No. B-135203.

COUNSEL

Alfred W. Crump, Jr., with him Marx, Ruth, Binder, Ward & Crump, for petitioner.

Daniel A. Schuckers, Assistant Attorney General, with him Bernadette A. Duncan, Assistant Attorney General, Sydney Reuben, Assistant Attorney General, and Robert P. Kane, Attorney General, for respondent.

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

Author: Disalle

[ 33 Pa. Commw. Page 417]

This case is before us upon a petition for review of an order of the Unemployment Compensation Board of Review (Board), which affirmed a referee's decision denying benefits to Jose A. Hernandez (Claimant). The Board determined Claimant was ineligible

[ 33 Pa. Commw. Page 418]

    for benefits pursuant to Section 402(e) of the Unemployment Compensation Law (Act), Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, 43 P.S. ยง 802(e), concluding that his discharge resulted from wilful misconduct.

Claimant was employed by Rachlin Furniture (Employer) as a general helper on July 17, 1972. His last day of actual work was April 10, 1975. The Employer promulgated "Attendance Rules" which became effective for all employes on March 1, 1975, and a copy of the rules was given to the Claimant. The Employer's attendance policy consisted of a penalty point system, a certain number of points being assigned to the employe if he was late, left work early, or was absent. When an employe accumulated 100 penalty points or more, he was discharged. Points were assigned for tardiness, leaving work early, or absenteeism, whether with good cause or without good cause. However, an employe could erase 10 penalty points from his record by each week of perfect attendance.

The record discloses that the Claimant was absent from work, was late in arriving for work, or left work early on at least 8 occasions from March 1, 1975 until he received notification of the termination of his employment on April 15, 1975. The Claimant received a temporary suspension for the work days of April 1, 2, and 3 of 1975 because his penalty point total, although less than 100, had reached the disciplinary level. The Claimant was also absent from work on April 4. In addition, he was absent part of the day of April 11, 1975. On April 12, 1975, the Employer calculated Claimant's penalty points and determined that since Claimant had accumulated 100 points, he would be discharged. The Claimant failed to return to work on April 14, but did return for work on April 15, 1975. The Employer discharged him on April 15. The record discloses that on the day of actual notification of

[ 33 Pa. Commw. Page 419]

    termination, April 15, 1975, the Claimant had amassed 115 penalty points.

Claimant contends that there is not substantial evidence in the record to support the conclusion that his termination was for wilful misconduct. Alternatively, he argues that the penalty point system was unreasonable since it did not distinguish between absences for good cause and ...


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