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HARVEY R. HENRY v. COMMONWEALTH PENNSYLVANIA (02/27/81)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: February 27, 1981.

HARVEY R. HENRY, JR., PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT

Appeal from the Order of the Unemployment Compensation Board of Review in case in In Re: Claim of Harvey R. Henry, Jr., No. B-177983.

COUNSEL

Barbara J. Hart, with her Louis M. Shucker, for petitioner.

Steven R. Marcuse, Assistant Attorney General, with him Richard Wagner, Chief Counsel, and Harvey Bartle, III, Acting Attorney General, for respondent.

Judges Rogers, Craig and Palladino, sitting as a panel of three. Opinion by Judge Craig. Judge Palladino dissents.

Author: Craig

[ 57 Pa. Commw. Page 193]

In this unemployment compensation appeal, the claimant*fn1 seeks reversal of the Board's*fn2 decision affirming the referee's conclusion that claimant was ineligible by virtue of Section 402(e) of the Unemployment Compensation Law,*fn3 the willful misconduct disqualification.*fn4

Employer's personnel manager discharged the claimant because, in the context of a telephone dispute over claimant's work attendance record, claimant had challenged the manager's veracity by telling him he was "full of shit," and had protested the manager's request for a doctor's certificate of illness by saying "that's bullshit."

We find no error in the board's holding that claimant's language substantially disregarded the standards an employer may rightfully expect and therefore constituted willful misconduct. Although claimant

[ 57 Pa. Commw. Page 194]

    protests that his remarks were not uttered in public nor in disrespect, and that the manager may have been abusive of other employees at other times, the weight and credibility of such evidence are for the board, not this court. Further, claimant's choice of terminology, in itself, supports the finding that he was insubordinate. Insubordinate vulgarity constitutes willful misconduct. Unemployment Compensation Board of Review v. Boff, 24 Pa. Commonwealth Ct. 571, 357 A.2d 694 (1976).

Similarly, claimant's argument that his remarks were justified,*fn5 because he had not missed scheduled work, lacks merit because the record is clear that his discharge resulted from his indecorous language rather than from questioning the accuracy of the manager's information. Moreover, claimant's own testimony belies the contention, made in his brief, that he told the manager during the telephone conversation that his foreman had altered his schedule without the manager's knowledge; the same testimony reveals that the manager indicated that he relied on his own records in believing claimant to have been absent, thus affording claimant an adequate opportunity to point out error in those records. Instead of explaining that error, claimant chose to disparage the manager.

Accordingly, we affirm the board.

Order

And Now, February 27, 1981, the November 20, 1979 order of the Unemployment Compensation Board of Review at No. B-177983 is affirmed.

Judge Palladino dissents.

Disposition

Affirmed.


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