Appeal from the Order of the Unemployment Compensation Board of Review in the case of In Re: Claim of John Jakubowski, No. B-205467.
Gene C. Bertsch, for petitioner.
John W. McTiernan, McArdle, Caroselli, Spagnolli & Beachler, for respondent, John Jakubowski.
Charles Hasson, Chief Counsel, for respondent, Unemployment Compensation Board of Review.
President Judge Crumlish, Jr. and Judges Barry and Barbieri, sitting as a panel of three. Opinion by Judge Barry. Dissenting Opinion by Judge Barbieri.
Petitioner Duquesne Light Company (Duquesne) seeks review of an order by the Unemployment Compensation Board of Review (Board) which affirmed a decision of the referee awarding unemployment compensation benefits to the claimant John Jakubowski.
Duquesne hired claimant in January of 1974 as a Nuclear Operator. Claimant later qualified and received certification on a different job known as a Nuclear Control Operator (NCO). He continued in this
capacity until his suspension and subsequent discharge in November of 1981.
Prior to June, 1981, claimant became increasingly dissatisfied with his position as an NCO and decided he wanted to transfer or bid into a different job within Duquesne. About two years prior to this time, Duquesne, in order to protect its substantial investment in its training of Nuclear Operators, adopted a policy forbidding NCOs to transfer or bid from that job. Claimant's union never accepted this policy.
NCOs are required to be certified biannually by the United States Department of Energy as specified by the Nuclear Regulatory Commission (NRC). To obtain an NCO's license one must disclose his or her medical history as specified by NRC. The method adopted by the Department of Energy for the disclosure of medical history by applicants for NCO certification is the completion of a Certificate of Medical History. Claimant had complied with this requirement on three prior occasions during his term of employment. During the early part of the summer of 1981, Duquesne gave claimant this form to complete because his certification expired in September, 1981. The Certificate of Medical History included a notice attached to it pursuant to the Federal Privacy Act (Privacy Act), 5 U.S.C. § 552(a), which provides: "Disclosure is voluntary. If the requested information is not provided, however, the application for a facility operator's or senior operator's license may be denied."
In alleged reliance on the Privacy Act, claimant refused to complete this form in order to disqualify himself as an NCO and, in turn, secure his transfer to a different job. On July 29, 1981, Duquesne requested the Department of Energy to recertify claimant as an NCO. During August, 1981, ...