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MICHAEL D. KELLEY ET AL. v. COMMONWEALTH PENNSYLVANIA (10/27/83)

decided: October 27, 1983.

MICHAEL D. KELLEY ET AL., PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT. CATHERINE A. KELLEY, PETITIONER V. COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT



Appeals from the Orders of the Unemployment Compensation Board of Review in cases of In Re: Claim of Michael D. Kelley, No. B-199124, and in case of Catherine A. Kelley, No. B-199123.

COUNSEL

Michelle A. Terry, with her Mark A. Kaufman, for petitioners.

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

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

Author: Williams

[ 78 Pa. Commw. Page 137]

This case involves the consolidated appeals of Catherine and Michael Kelley from the decision of the Unemployment Compensation Board of Review denying benefits pursuant to Section 402(e) of the Unemployment Compensation Law (Law).*fn1

The Board made detailed factual findings, which, for the most part, are not in dispute. These findings reflect the following scenario. The claimants, husband and wife, were relief week-end supervisors for Pan Am Corporation, a provider of residential care

[ 78 Pa. Commw. Page 138]

    for the mentally retarded. The claimants were employed in a grouphome which provided residential and treatment services to mentally handicapped residents of Montgomery County pursuant to a contract between Pan Am and the county. The claimants' job responsibilities required that they provide total care, supervision and maintenance of residents specifically assigned to them.

In the course of their employment, the claimants observed conditions which led them to conclude that residents were not receiving adequate care and treatment. Among the conditions which allegedly concerned them were inadequate food and medication. The claimants protested these conditions to their immediate supervisor and to their project director, who was the highest ranking company employee with whom they had ever had any direct communication. When their protests failed to achieve satisfactory results, the claimants wrote a letter in which they described conditions in the group-home which they felt compromised the well-being of the residents.*fn2 The letter was addressed to the Montgomery County agency responsible for placement of the mentally retarded; to the Special Master in a federal court action involving standards of treatment and disposition of mentally retarded

[ 78 Pa. Commw. Page 139]

    patients in the Pennhurst State School and Hospital;*fn3 to counsel for the Association of Retarded Citizens; and to the sister-in-law and legal guardian of one of the group-home residents.*fn4 Pan Am's president learned of the claimants' allegations regarding conditions at the group-home when he received a copy of the letter from Montgomery County welfare officials. Accompanying the copy was a directive that Pan Am respond within two days with a complete report on the conditions alleged by the claimants. Two days after Pan Am's president learned of the letter, the claimants were discharged.

The company asserts, and the Board found, that the claimants were not fired for the allegations they made in the letter, but because they published their protest to company outsiders without first pursuing the company's internal grievance mechanism. The 4-step grievance procedure, which was published in an employee handbook, was prefaced by the following statement: "If you have a complaint about your job or disagree with a disciplinary or termination action, you have a right to request a review using the following procedure. . . ." The four grievance steps were: (1) discussion of the grievance with the employee's immediate supervisor; (2) submission of the grievance in writing to the project ...


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