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BERTRAND A. WALTZ v. COMMONWEALTH PENNSYLVANIA (11/12/87)

decided: November 12, 1987.

BERTRAND A. WALTZ, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT



Appeal from the Unemployment Compensation Board of Review in the claim of In Re: Claim of Bertrand A. Waltz, No. B-254767.

COUNSEL

Jane Muller-Peterson, for petitioner.

James K. Bradley, Assistant Counsel, with him, Clifford F. Blaze, Deputy Chief Counsel, for respondent.

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

Author: Palladino

[ 111 Pa. Commw. Page 55]

Bertrand A. Waltz (Petitioner) appeals an order of the Unemployment Compensation Board of Review (Board) which reversed the referee's determination awarding him benefits under Section 402(e) of the Unemployment Compensation Law*fn1 based on the referee's finding that Petitioner had not engaged in willful misconduct. We affirm.

Petitioner was employed as a manager/hair stylist by Singer Enterprises of Palmyra, Pennsylvania. According

[ 111 Pa. Commw. Page 56]

    to the terms of Petitioner's employment contract, Petitioner was paid a weekly salary, which required him to work between forty (40) and sixty (60) hours per week, as needed, but did not include additional compensation for any overtime work.

In July of 1986, Petitioner learned that management employees, who do not have management as their primary duty, are entitled to overtime compensation under the Federal Fair Labor Standards Act.*fn2 Petitioner contends that his management duties comprise substantially less than half of his overall work duties, thereby entitling him to overtime pay.*fn3 After receiving this information, Petitioner informed his employer that he would no longer work for more than forty (40) hours per week without overtime compensation.

One week after informing his employer of his intention, Petitioner and his employer attempted to meet to discuss the overtime pay. At the hearing before the referee, the employer testified that Petitioner refused to meet while Petitioner testified that the time designated for the meeting simply was inconvenient for him. The employer later discharged Petitioner from his employment in a telephone conversation on July 25, 1986.

The referee determined that Petitioner's action of informing his employer of his refusal to work overtime without additional compensation did not constitute willful misconduct warranting a denial of unemployment ...


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