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WEST PENN POWER COMPANY v. COMMONWEALTH PENNSYLVANIA (11/12/81)

decided: November 12, 1981.

WEST PENN POWER COMPANY, 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 Frank R. Zubal, No. B-181892.

COUNSEL

Drew J. Kovalak, for petitioner.

John T. Kupchinsky, Associate Counsel, with him, Richard Wagner, Counsel, and Richard L. Cole, Jr., Chief Counsel, for respondent.

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

Author: Palladino

[ 62 Pa. Commw. Page 323]

West Penn Power Company (West Penn) appeals here from a decision and order of the Unemployment

[ 62 Pa. Commw. Page 324]

Compensation Board of Review (Board) which reversed a referee's decision denying benefits to Frank R. Zubal on the ground that he had been discharged from his employment because of "willful misconduct." We reverse and remand.

Claimant was last employed as a lineman for West Penn where he also served as Vice President of union local 102B of the Utility Worker's Union of America. On November 15, 1979, Claimant's last day of work, Claimant was working with six other linemen on a series of utility poles when the crew's foreman decided to temporarily suspend work because of a passing snow squall. Shortly thereafter, the snow turned into rain, and the foreman decided that it was safe to resume work. Claimant and his co-workers, however, disputing this assessment of the weather conditions, refused to return to work on the poles, and were sent home. Claimant and Frank Pattock, the President of union local 102B, were subsequently dismissed for their roles in this incident, and the other five linemen involved, none of whom were union officials, were subsequently suspended for one week.

After applying unsuccessfully to the Bureau, now Office, of Employment Security (Bureau) for unemployment compensation benefits, Claimant appealed to a referee who conducted a hearing on his claim on January 7, 1980. At this hearing, a representative from West Penn testified that Claimant and Frank Pattock had been discharged because of (1) their failure to return to work on the poles and (2) their failure to meet their obligations under Section XXX of the parties' collective bargaining agreement which provides in pertinent part:

[I]f any employees engage in any strike, slowdown, or refusal to carry out work assignments during the term of this Agreement, the Union and its officers will forthwith make a sincere,

[ 62 Pa. Commw. Page 325]

    active effort to have work resumed at a normal rate . . . . However, should such action on the part of the Union and its officers fail to end such a strike, slowdown, or work refusal, it is agreed that the Company shall have the unqualified right to discipline ...


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