Appeal from the Order of the Office of Employment Security in case of In Re: Claim of Thomas L. Rossi, Jr., No. B-176043.
Ronald David Ashby, for petitioner.
Karen Durkin, Assistant Attorney General, with her Richard Wagner, Chief Counsel, and Harvey Bartle, III, Attorney General, for respondent.
Judges Mencer, Rogers and Palladino, sitting as a panel of three. Opinion by Judge Rogers. Judge Wilkinson did not participate in the decision in this case.
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Thomas J. Rossi, Jr., has appealed from an order of the Unemployment Compensation Board of Review (Board) affirming a referee's decision denying Rossi unemployment compensation benefits on the ground of willful misconduct. Section 402(e) of the Unemployment Compensation Law, Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e). We affirm.
The facts are not disputed. Rossi was employed by the Sun Shipbuilding and Dry Dock Company (Sun Ship) as a marine rigger. Rossi's last day of actual work was January 3, 1979. On January 4, 1979, a work stoppage occurred at Sun Ship and continued until February 8, 1979. When the work stoppage ended, Rossi notified Sun Ship that he had broken his arm in the interim and would not be able to report back to work. Sun Ship reminded Rossi that the appropriate collective bargaining agreement required Rossi to inform Sun Ship weekly of his condition and of his future intentions. The collective bargaining agreement also provided that a failure to keep Sun Ship so informed during an absence of fifteen or more consecutive days would result in an employee's discharge.
From February 9, 1979, until February 27, 1979, Rossi failed to inform Sun Ship of his condition as required. Sun Ship nevertheless informed Rossi that, because of the confusion surrounding the return of workers following the work stoppage, Rossi's failure
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to provide the information during the period February 9 to February 27 would be excused. At the same time, however, Sun Ship warned Rossi that it expected him to comply with the requirement from February 28, 1979, until his return to work.
From February 28 until March 13, 1979, Rossi did inform Sun Ship weekly of his physical condition and of his future intentions. However, from March 14 through March 29, Rossi provided Sun Ship with no information at all. Rossi was discharged by Sun Ship for being absent for fifteen consecutive days without providing the requisite weekly information.
Rossi's application for unemployment compensation benefits was denied by the Office of Employment Security on the ground of willful misconduct. This decision was affirmed by a referee after a hearing. Upon appeal by Rossi, the Board, after making minor modifications of the referee's findings of fact, affirmed the referee's decision.
Rossi first contends that the Board erred as a matter of law in concluding that Rossi was guilty of willful misconduct for a violation of the reporting requirement because Sun Ship waived compliance when on February 27, 1979, it caused Rossi to be told that he would not be discharged for his past violation. We disagree. The effect of a waiver of a contract provision may be made retrospective only by the waiving party's giving notice to the other party that future compliance with the contract provision will be required. 3A Corbin on Contracts § 764. Here Rossi testified that Sun Ship told him that it was waiving the requirement only as to Rossi's failure to provide notice from February 9 through February 27, 1979, and that it expected him ...