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PATRICK V. NOLAN v. COMMONWEALTH PENNSYLVANIA (02/27/81)

decided: February 27, 1981.

PATRICK V. NOLAN, 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 Patrick V. Nolan, No. B-172021.

COUNSEL

Michael Goldberg, for petitioner.

John T. Kupchinsky, Assistant Attorney General, with him Richard Wagner, Chief Council, and Harvey Bartle, III, Acting Attorney General, for respondent.

Judges Mencer, Rogers and Blatt, sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 57 Pa. Commw. Page 187]

The claimant*fn1 appeals from an order of the Unemployment Compensation Board of Review (Board)

[ 57 Pa. Commw. Page 188]

    which found him to be ineligible for unemployment compensation benefits because he had been discharged from employment for willful misconduct.*fn2

The claimant had been employed as an electrician by Lukens Steel Company (employer) since 1967 when, on October 23, 1978, he was discharged for falsifying his employment records so as to be placed in a higher pay bracket. The claimant's conduct stemmed from a long-standing dispute with his employer over what the claimant considered to be the employer's discrimination against handicapped employees.

The claimant was injured at work in 1972 resulting in the loss of one eye, impaired vision in the other eye, and partial disability of his right arm. After a two-year convalescence, he returned to work and soon became engaged in a series of disagreements as to whether or not he would advance beyond his existing job classification. In 1975, he requested to take the employer's test for advancement but the employer refused because of the claimant's handicap. The claimant then initiated a grievance under his union's collective bargaining agreement, and the grievance was resolved in his favor. When he took the test, however, he failed. After waiting the required time he requested to take the test again, and was again refused. He once again prevailed in the grievance procedure, took and passed the written portion of the test in September of 1978, but he was informed that the employer did not consider him qualified for the higher job classification due to his handicap, which the employer maintained was a relevant consideration for the claimant's advancement. The claimant filed yet another grievance to attain a higher job classification, meanwhile, intentionally falsifying his job classification on

[ 57 Pa. Commw. Page 189]

    his daily manpower production report, thereby receiving $19.95 in pay to which he was not entitled. When the employer became aware of the record falsification, the claimant was discharged. The claimant admits and the Board found that this falsification of records was intentional. After his discharge the claimant filed a complaint with the U.S. Department of Labor alleging that the employer had violated his rights under Section 793 of the Rehabilitation Act of 1973, 29 U.S.C. ยง 793. It is unclear what success, if any, he met in that litigation. Also following his discharge, he filed another grievance seeking reinstatement, and after arbitration, he was reinstated without back pay.

The claimant had applied for unemployment benefits immediately after his discharge, and the Office of Employment Security had determined that he was ineligible for benefits because the falsification of records constituted willful misconduct. A referee affirmed the denial of benefits after a hearing before him, and, on appeal to the Board, additional evidence was taken, but the Board affirmed the referee's finding of willful misconduct. The claimant contends that what he did could not amount to willful misconduct because it was not done with evil ...


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