Appeal from the Order of the Unemployment Compensation Board of Review in the case of In Re: Claim of Don Emerick, No. B-175804-B.
John J. Petrush, Petrush & Miller, for petitioner.
William J. Kennedy, Associate Council, with him Richard Wagner, Counsel, and Richard L. Cole, Jr., Chief Counsel, for respondent.
No appearance for intervenor.
President Judge Crumlish and Judges Blatt and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail.
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Rochester Machine Corporation appeals from an order of the Unemployment Compensation Board of
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Review (Board), which reversed the referee and found Don Emerick (Claimant) eligible for unemployment compensation benefits. Subsequent to a remand hearing for the taking of additional testimony by its hearing officer, the Board determined that Claimant was not guilty of willful misconduct under Section 402(e) of the Unemployment Compensation Law.*fn1
Claimant was last employed by Rochester Machine Corporation (Employer) for three years at a final hourly rate of $7.75, his last day of work occurring on May 29, 1979. Claimant was employed as lead*fn2 man in the weld shop. Claimant's regular working hours were from 7:00 A.M. to 4:00 P.M. with fifteen minutes for lunch. Claimant was paid for one hour of overtime each day. During the eight months prior to his discharge, Claimant and his supervisors had several discussions about his leaving work prior to 4:00 P.M. and his decreasing productivity. In addition, it was Employer's contention that when Claimant left work early, he encouraged his co-workers to do the same. That contention was flatly denied by the Claimant.
In the early afternoon of May 20, Employer's president asked Claimant to meet with him at 4:00 P.M. Claimant apparently made no verbal response but the negative shake of his head was taken by the
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president as a refusal. Claimant's version is that there was so much noise and confusion at the work place that the president didn't hear Claimant's explanation of why he could not meet at 4:00 P.M. (car pooling). About a half an hour after the incident, Claimant was fired. Employer's ...