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THOMAS W. GUNDERMAN v. COMMONWEALTH PENNSYLVANIA (03/07/86)

decided: March 7, 1986.

THOMAS W. GUNDERMAN, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT



Appeal from the Order of the Unemployment Compensation Board of Review in the case of In Re: Claim of Thomas W. Gunderman, No. B-229317.

COUNSEL

Ronald J. Karasek, Zito, Martino and Karasek, for petitioner.

John W. English, Associate Counsel, with him, Charles G. Hasson, Acting Deputy Chief Counsel, for respondent.

Judges MacPhail, Doyle and Barry, sitting as a panel of three. Opinion by Judge Barry. Dissenting Opinion by Judge Doyle.

Author: Barry

[ 95 Pa. Commw. Page 480]

Thomas Gunderman (claimant) appeals from a decision of the Unemployment Compensation Board of Review (Board) which reversed the referee and denied him unemployment compensation benefits.

Claimant was employed by Speck Plastics, Inc. (employer) for approximately seven and a half years. His last day of work was August 3, 1983. On December 16, 1982, claimant received a written warning for violation of a rule requiring timely reporting of absences. Between December 16, 1982 and June 21, 1983, claimant violated this rule ten more times, and consequently

[ 95 Pa. Commw. Page 481]

    received a three day suspension from work. On August 2, 1983, claimant and employer attended an unemployment compensation hearing before a referee concerning the three day suspension. Claimant surreptitiously recorded this hearing. Later that day, and again on the following day, claimant played the tape of the hearing for some of his co-workers while on the employer's premises. Although the Board found that the playbacks occurred during breaktimes, it also found that the tape was played with the intention of causing a disturbance among the employees and that such a disturbance did in fact occur. The Board also found that claimant had been fired for three separate reasons: first, because his conduct in surreptitiously making the tape and playing it back constituted a third offense in the three step procedure outlined by the employer's regulations (the first two offenses being violations of the reporting rules), for which dismissal was a proper procedure; second, because the conduct amounted to willful misconduct in itself and was grounds for termination under a general clause of the employer's regulations; and third, because the conduct was illegal, constituting a violation of the Pennsylvania Wiretapping and Electronic Surveillance Control Act, 18 Pa. C.S. §§ 5701-5727.

The claimant first argues that the three step disciplinary procedure was improperly applied in this case because the first two infractions of the work rules related to untimely reporting of absences. As this third alleged violation does not concern that rule, the claimant believes that discharge is improper even if the present conduct constituted willful misconduct.

Section V(D) of the employer's employee manual provides that proper discipline "shall consist of up to and including written warning of any first infraction, up to and including disciplinary suspension for any second infraction, and up to and including discharge

[ 95 Pa. Commw. Page 482]

    for any third infraction." (Emphasis added.) For the claimant's argument to have merit, this section would have to provide that the step disciplinary procedure applies to successive violations of the same ...


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