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SAMUEL NUNEZ v. COMMONWEALTH PENNSYLVANIA (08/29/84)

decided: August 29, 1984.

SAMUEL NUNEZ, 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 Samuel Nunez, No. B-216314.

COUNSEL

David A. Scholl, for petitioner.

Michael D. Alsher, Associate Counsel, with him, Richard L. Cole, Jr., Chief Counsel, for respondent.

Judges Doyle, Colins and Palladino, sitting as a panel of three. Opinion by Judge Palladino.

Author: Palladino

[ 84 Pa. Commw. Page 621]

Samuel Nunez (Claimant) appeals here from an order of the Unemployment Compensation Board of Review (Board) which affirmed a decision of a referee denying benefits pursuant to Section 402(e) of the Unemployment Compensation Law (Law).*fn1 We affirm.

The Board found the following facts. Claimant was employed as a jitney driver for more than three years, during which employment, the Employer's policy required an employee to report an anticipated absence

[ 84 Pa. Commw. Page 622]

    prior to the start of his shift. The Board found that this policy was to afford the Employer enough time to find a replacement worker without adversely affecting production. Enforcement was by a progressive discipline procedure under which an employee could be terminated after four violations within a six-month period. In evaluating a violation, the Employer would take into consideration the reason for an employee's non-compliance. Moreover, if an employee presented documentation that an anticipated absence would extend beyond one day, that employee was relieved of giving notice on a daily basis. This unwritten policy, although not part of the Employer's labor management agreement as were the policies concerning absenteeism and tardiness, was nonetheless known to all employees, including Claimant.

Claimant, who worked the 11:00 P.M. to 7:00 A.M. shift, was terminated after failing to report off prior to the start of his shift on four occasions in July and August, 1982. On July 9, Claimant failed to report his absence prior to the start of his shift because he overslept. He was issued a verbal warning for this violation. On July 29, Claimant failed to call in an anticipated absence until 11:02 P.M., claiming that prior to the start of his shift the telephone lines were busy.

Claimant failed to report his absence on August 4, claiming that he was incarcerated and allowed only one phone call which he used to contact his attorney.*fn2 Claimant's final infraction occurred on August 5 when he failed to call the Employer to report his anticipated absence for an alleged ankle injury. However, Claimant did not provide the Employer with documentation

[ 84 Pa. Commw. Page 623]

    of his injury as was required by the Employer's policy. The Board denied benefits, finding ...


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