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CLARENCE E. STRONG v. COMMONWEALTH PENNSYLVANIA (04/22/83)

decided: April 22, 1983.

CLARENCE E. STRONG, 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 Clarence E. Strong, No. B-198504.

COUNSEL

Joseph Kubacki, Jr., for petitioner.

Richard L. Cole, Jr., Chief Counsel, with him Charles D. Donahue, Associate Counsel, for respondent.

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

Author: Rogers

[ 73 Pa. Commw. Page 555]

The Office of Employment Security, a referee and the Unemployment Compensation Board of Review all denied benefits to the appellant, Clarence Strong, because, as they concluded, his unemployment was caused by his 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).

The claimant was employed as a coal mine examiner. In April, 1981, the United Mine Workers were on strike, the employer's mine was idled and as a consequence the claimant and other mine examiners had not been examining all air courses, bleeder evaluation points and other places in the mine as they regularly did when the mine was producing coal. For reasons which seemed good to them, including a recent mine disaster in Colorado, the superintendent

[ 73 Pa. Commw. Page 556]

    and the general manager of the mine decided that the air courses, the bleeder evaluation points and other places regularly examined should be examined as if the mine were producing coal.

When the claimant reported for work on April 27, 1981, he and the other examiners were instructed by the mine foreman to do the full examination. The claimant in a boisterous and truculent manner objected to and derided the new orders as unnecessary, declaring that full examination was not required by government mine inspectors when the men were out. He described the author of the posted notice of the new procedures as a greenhorn and charged his superiors with "running scared." All this took place in the presence of at least eight other salaried employees. The mine foreman then required the claimant to meet with the mine superintendent to whom the claimant repeated his denunciation of the work order in some of the same language he had used before. The mine superintendent with authority from the general manager then discharged the claimant for insubordination.

The claimant says that his conduct was not willful misconduct because he did not actually refuse to do the work, that his dereliction, if any, was de minimus and that he was provoked. It is not necessary in this class of case that the claimant refuse to do the assigned work to be found to have committed acts of willful misconduct. Abusive language directed to a superior is a form of insubordination which alone may be found to be disqualifying. Nesmith v. Unemployment Compensation Board of Review, 43 Pa. Commonwealth Ct. 579, 402 A.2d 1132 (1979); Costa v. Unemployment Compensation Board of Review, 31 Pa. Commonwealth Ct. 7, 374 A.2d 1012 (1977). In Costa the claimant called his superior a liar. The

[ 73 Pa. Commw. Page 557]

    claimant in this case described his foreman and the mine superintendent as timorous on the subject of mine safety and called the superintendent a greenhorn -- a person inexperienced and unsophisticated in the art of mining. In the context of mine safety and in the setting in which the first discourse was delivered; that ...


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