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DIANA L. SPENCE v. COMMONWEALTH PENNSYLVANIA (12/28/79)

decided: December 28, 1979.

DIANA L. SPENCE, 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 Diana H. Spence, No. B-155222-B.

COUNSEL

James Bukac, for petitioner.

John T. Kupchinsky, with him, William J. Kennedy, Assistant Attorney General, Richard Wagner, Chief Counsel, Edward G. Biester, Jr., for respondent.

Judges Crumlish, Jr., DiSalle and Craig, sitting as a panel of three. Opinion by Judge Crumlish, Jr.

Author: Crumlish, Jr.

[ 48 Pa. Commw. Page 205]

Diana L. Spence was denied benefits by the Unemployment Compensation Board of Review which affirmed a referee who denied benefits for willful misconduct under Section 402(e) of the Unemployment Compensation Law (Act), Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. ยง 802(e). We affirm.

Spence, a Mental Retard Aide I, was discharged for chronic tardiness. During the period of her employment with Polk Center, she had amassed a record of excessive tardiness and absenteeism. The referee found that Spence had been warned in writing of tardiness, was given a two-day suspension for unauthorized absences, was warned of impending discharge following two separate suspensions for tardiness totaling seven days, and was finally discharged when she thereafter reported late for work.

In this appeal, Spence does not dispute the referee's findings of tardiness or absence, but contends that the incidents were excusable and justifiable under the standards set by her employer's current "progressive discipline policy."*fn1 She also maintains that the

[ 48 Pa. Commw. Page 206]

    employer representative's testimony was inadmissible hearsay.

Employee conduct falling short of an employer's disciplinary standards contained in employer work rules or provisions of a labor-management agreement is not willful misconduct because these standards are mere guidelines of behavior telling an employee the type of conduct expected of him and the consequences of a violation. See Kai-Jay Pants Co. v. Unemployment Compensation Board of Review, 29 Pa. Commonwealth Ct. 621, 372 A.2d 493 (1977); Unemployment Compensation Board of Review v. Schmid, 20 Pa. Commonwealth Ct. 286, 341 A.2d 553 (1975).

Here, in the record, we find ample evidence of repeated citations of violations and the ultimate consequence thereof to Spence: (1) a written warning was issued on February 3, 1977, for reporting late three times in four months; (2) Spence was ...


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