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BIRDSBORO CORPORATION v. COMMONWEALTH PENNSYLVANIA (06/04/81)

decided: June 4, 1981.

BIRDSBORO CORPORATION, A SUBSIDIARY OF PENNSYLVANIA ENGINEERING CORPORATION, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT. ROBERT T. PINKASAVAGE ET AL., INTERVENORS



Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Robert T. Pinkasavage, et al., No. B-179770.

COUNSEL

Henry J. Wallace, Jr., with him Stephen J. Stabler, Reed, Smith, Shaw & McClay, for petitioner.

Charles G. Hasson, Associate Counsel, with him Richard Wagner, Counsel, and Richard L. Cole, Jr., Chief Counsel, for respondent.

No appearance for intervenors.

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

Author: Craig

[ 59 Pa. Commw. Page 463]

An employer, Birdsboro Corporation, has appealed from decisions of the referee and Unemployment Compensation Board of Review granting benefits to claimants, four supervisors who, according to the employer, were discharged for willful misconduct and therefore ineligible for benefits under Section 402(e) of the Unemployment Compensation Law (Act).*fn1

The employer company produces steel castings, fabrications and machine products. Certain supervisors in the company had incorporated the Birdsboro Foundry-Fabrication and Production Foreman's Guild, Local No. 1 (Guild); the four claimants are the Guild's president, vice president and two of its directors.

The employer refused to recognize the Guild as a labor organization, and the National Labor Relations Board agreed, finding that Guild members are not "employees" and the Guild is not a labor organization.

Continuing to demand recognition from the company, about forty-six Guild members, including the claimants, did not report to work during the first twenty-six days of June, 1979.

On June 4, the employer sent a written warning to all the supervisors not working, including the claimants, that failure to report to work could result in disciplinary action, including discharge.

[ 59 Pa. Commw. Page 464]

On June 26, the claimants advised that they would be returning to work the following day. The employer then informed the claimants that they were fired. On the following day, the employer gave each claimant a letter discharging him for (1) unauthorized absence and (2) discouraging others from working. In addition, refusal to meet with the company's executive vice president, when requested, was assigned as another reason with respect to two of them, and discouragement of truck entry to the plant was also assigned as to one. Unsatisfactory performance of duties was also listed with respect to two claimants.

However, the referee's findings (adopted by the board after a rehearing) confirm that the employer permitted forty of the supervisors to return to work. Only six, including the claimants, were discharged.

In analyzing the remaining facts, we note that, at the inception of the hearings, the employer representatives and claimant's attorney stipulated and agreed that "the claim or the appeal of . . . Pinkasavage will govern the ruling of the Appeal of . . . Beahn ...


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