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ELMER JOHNSON v. COMMONWEALTH PENNSYLVANIA (01/23/86)

decided: January 23, 1986.

ELMER JOHNSON, 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 Elmer Johnson, No. B-231553.

COUNSEL

Andrew F. Erba, for petitioner.

Charles G. Hasson, Acting Deputy Chief Counsel, with him, Daniel T. Booth, Legal Intern, for respondent.

Judges Rogers and Palladino, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 94 Pa. Commw. Page 317]

This is the appeal of Elmer Johnson (claimant) from an order of the Unemployment Compensation Board of Review (board) which reversed a referee's decision and denied the claimant benefits pursuant to Section 402(e) of the Unemployment Compensation

[ 94 Pa. Commw. Page 318]

Law (Law), Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. ยง 802(e), which provides that persons whose unemployment is the result of their wilful misconduct are to be ineligible for compensation.

The claimant was employed as a steel roll dye maker by the Atlas Dye Cutting Company (employer) for a little more than five years. The Office of Employment Security (OES) held the claimant to be ineligible for having directed profanity to and threatened a supervisor.

On appeal, a referee heard conflicting testimony concerning the history of the relations between the claimant and the supervisor and the circumstances of the alleged profanity and threat. The employer's witnesses, the supervisor and two officers of the employer, testified that in speaking to his supervisor the claimant used vulgar language and said "we'll go outside and I'll kick your a --." The claimant produced two fellow employees who testified that they were present at the alleged incident; that it lasted only a minute or two; that they heard no threats; and that no one could have heard the conversation over the noise in the workplace. All of the witnesses, including the supervisor, testified that the claimant made no violent gestures toward the supervisor nor did he ever touch him.

The witnesses all testified that there was a personality clash between the claimant and the supervisor. An officer stated that he had never had a problem with the claimant, "but there were problems since the day [he] hired [this] Supervisor." There was also testimony regarding a union determination that the supervisor was guilty of harassing the claimant.

In a well-reasoned decision, the referee discussed the background of the case and the conflicting testimony, and determined ...


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