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WILLIAM CALLOWAY v. COMMONWEALTH PENNSYLVANIA (05/09/80)

decided: May 9, 1980.

WILLIAM CALLOWAY, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT. GIMBEL BROTHERS, INC., INTERVENING PARTY, RESPONDENT



Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of William Calloway.

COUNSEL

Andrew F. Erba, for petitioner.

William J. Kennedy, with him David Confer, Assistant Attorneys General, for respondent.

Brenda C. Kinney, with her Jane Ruddell, Schnader, Harrison, Segal & Lewis, for intervening party respondent.

Judges Crumlish, Jr., Wilkinson, Jr. and Mencer, sitting as a panel of three. Opinion by Judge Mencer. President Judge Bowman did not participate in the decision in this case.

Author: Mencer

[ 51 Pa. Commw. Page 264]

William Calloway (claimant) appeals a decision of the Unemployment Compensation Board of Review (Board) which denied him benefits under Section 402(b)(1) of the Unemployment Compensation Law (Law),*fn1 43 P.S. ยง 802(b)(1), for terminating his employment without cause of a necessitous and compelling nature.

Claimant was employed by Gimbel Brothers, Inc., as a contingent employee, i.e., one who is available for full-time or part-time work and is assigned work, depending on its availability, on a weekly basis, either by a preset weekly schedule or by special assignment upon inquiry at the personnel office. It is undisputed that each contingent employee is responsible for obtaining his assignment weekly by calling or stopping at the personnel office.

In late November 1977, claimant agreed to be transferred from the sales floor to the stock room because he was told that the cap he was wearing in connection with a religious observance was not permitted on the sales floor under Gimbel's regulations. As a result, claimant filed complaints alleging discrimination, both internally with Gimbel and with the Human Relations Commission. Subsequent to the transfer, Claudia Cutler, the personnel representative in charge of contingent

[ 51 Pa. Commw. Page 265]

    employees, decided that she would specially assign work for claimant rather than preschedule it as before and directed that claimant's calls concerning his assignment be transferred to her. The referee found that claimant failed to call the personnel office to obtain his work assignment subsequent to December 3, 1977, his last day of work,*fn2 and concluded that claimant thereby abandoned his work without cause of a necessitous and compelling nature, thus rendering him ineligible for benefits. After a remand for an additional hearing, the Board affirmed and this appeal followed.

Claimant challenges the Board's crucial fourth finding of fact:

4. Subsequent to December 3, 1977, the claimant did not contact the employer concerning his working hours and his contingent employment; the employer received no phone call from the ...


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