decided: May 3, 1984.
GUSTAV A. STICKLOON, PETITIONER
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 Gustav A. Stickloon, No. B-206209.
James D. Watt, Jr., for petitioner.
Charles G. Hasson, Acting Deputy Chief Counsel, with him, Richard L. Cole, Jr., Chief Counsel, for respondent.
Judges Rogers, Craig and Colins, sitting as a panel of three. Opinion by Judge Colins.
[ 82 Pa. Commw. Page 224]
This is an appeal by Gustav A. Stickloon (claimant) from an Order of the Unemployment Compensation Board of Review (Board) affirming a referee's decision denying benefits on the ground that the claimant's unemployment was the result of his own willful misconduct.*fn1
The claimant worked for approximately eight years as a saw operator for United Metal Receptacle (employer). His last day of work was January 12, 1982, on which date he was told he was fired for having participated in an illegal work stoppage which was in violation of a labor-management agreement between the International Molders and Allied Workers Union and the employer. At the time of the stoppage the claimant was a member of the International Molders and Allied Workers Union and was a Union Official, the shop committeeman.
Our scope of review in unemployment cases where the party with the burden of proof has prevailed before the Board is limited to a determination of whether the Board's findings of fact are supported by substantial evidence and whether an error of law has been committed. Gardner v. Unemployment Compensation Board of Review, 71 Pa. Commonwealth Ct. 512, 454 A.2d 1208 (1983).
[ 82 Pa. Commw. Page 225]
The Board affirmed the decision of the Referee who found, inter alia, that:
1. . . . [The Claimant's] last day of work was January 12, 1982.
5. On January 8, 1982, the employees at the employer's facility commenced a work stoppage due to the employer's suspending a fellow employee for alleged infraction of the work rules.
6. Prior to the commencement of the shift on January 8, 1982, claimant as the shop committeeman, tried to persuade the workers to return to work because they would be in violation of Article XII of the labor-management agreement to no avail.
7. The plant superintendent then requested claimant to report to work. Claimant refused because the men voted to stay out and since he was part of the union, he was considered to be part of the same body of men.
8. On January 8, 1982 the employer issued an ultimatum to the employees that they either return to work on Monday, January 11, 1982, or lose their jobs.
9. On January 11, 1982 the employees returned to work and the claimant was discharged for participating in the work stoppage which was in violation of the labor-management agreement in effect during the stoppage.
10. The claimant participated in the unlawful work stoppage by refusing to report to work.
There is no evidence that the claimant participated in the work stoppage.*fn2 The testimony clearly indicates
[ 82 Pa. Commw. Page 226]
that the claimant fulfilled his obligations*fn3 to his employer and that he made several reasonable efforts to persuade the workers to return to work, because, if they did not, they would be in violation of Article XII*fn4 of the labor-management agreement.*fn5
On January 8, 1982 the employees at the employer's plant commenced a work stoppage when a fellow employee was suspended for alleged infraction of the work rules. On the employer's parking lot, despite bitterly cold weather, the claimant and other union officials tried to persuade the striking employees to return to work. However, the claimant and the other union officials' efforts were impeded by the employer,
[ 82 Pa. Commw. Page 227]
who threatened to have them arrested if they did not get off the lot. Even after being ordered off the employer's property, the claimant and other union officials continued to try to get the men to return to their jobs, and they immediately arranged another meeting at a nearby fire company.
Their efforts continued during the weekend, and a meeting was even held on Sunday, January 10, 1982. Again, at this meeting, the claimant and other union officials told the striking employees to return to work.
On Monday, January 11, 1982, the day the employees were told that they must return to work,*fn6 the claimant, along with the other employees, returned to their jobs as ordered.
The record nowhere indicates that the claimant refused any order by his employer to return to work. Also, the record does not contain any testimony that the employer told the claimant and the other employees that they were fired on Friday, January 8, 1982. The employer solely stated "that anyone who didn't return to work on Monday . . . would [be] discharge[d]."*fn7 The claimant and the other employees all returned to work on Monday.
However, even if there were substantial evidence showing the claimant participated in the work stoppage,
[ 82 Pa. Commw. Page 228]
the employer's action in discharging the claimant was clearly discriminatory.
The employer, in this case, is seeking to impose vicarious liability on the claimant for the uncontrollable actions by a group of malcontents acting against the wishes of the national union. The record shows that the employer said that he would hold the claimant, and several other union officials, "personally responsible" if there was a strike. This Court has held that discharged claimants cannot be rendered ineligible for compensation due to willful misconduct, where an employer in disciplining a group of supervisory employees, makes a distinction by discharging certain of the employees solely, according to the evidence, on the basis of the leadership positions conferred upon them. Birdsboro Corp. v. Unemployment Compensation Board of Review, 59 Pa. Commonwealth Ct. 462, 430 A.2d 361 (1981). In Davis v. Unemployment Compensation Board of Review, 59 Pa. Commonwealth Ct. 91, 428 A.2d 1031 (1981), all the employees who participated in certain conduct were discharged. The court held that there was no discrimination, because it applied to all.
The employer in the case at bar allowed some employees to continue to work after their alleged participation in the work stoppage, while he discharged the claimant for the same reason. There is no substantial evidence that the claimant was not using his best efforts to get the men to return to work, pursuant to his prescribed duties. The claimant in this case acted in accordance with the higher standard contractually conferred upon him as a union official, by attempting to persuade his fellow workers to return to work.*fn8
[ 82 Pa. Commw. Page 229]
For the foregoing reasons, the Order of the Unemployment Compensation Board of Review is reversed.
And Now, May 3, 1984, the decision of the Unemployment Compensation Board of Review, No. B-206209 dated May 27, 1982, is hereby reversed and the matter is remanded for the computation of benefits. Jurisdiction relinquished.
Reversed and remanded.