Opinion
Argued January 10, 1974
February 20, 1974.
Unemployment compensation — Scope of appellate review — Question of law — Findings of fact — Sufficient evidence — Discharge — Words and phrases — Wilful misconduct — Refusal to work — Absence with good cause — Conflicting employment.
1. In an unemployment compensation case review by the Commonwealth Court of Pennsylvania is limited to questions of law and a determination of whether the findings of the Unemployment Compensation Board of Review are supported by the evidence. [66]
2. A claimant is ineligible for unemployment compensation benefits if he is discharged from employment for wilful misconduct which is an act of wanton or wilful disregard of the employer's interest, a deliberate violation of rules, a disregard of behavior standards which his employer has a right to expect, or negligence such as to manifest culpability, wrongful intent or evil design or show an intentional and substantial disregard of the employer's interest and the employe's duties and obligations to the employer. [66-7]
3. Refusal to work as ordered by an employer ordinarily constitutes wilful misconduct, but an absence from work with good cause does not constitute wilful misconduct. [67]
4. One, voluntarily running for the position of judge of election and realizing that such service would conflict with his employment, is guilty of wilful misconduct when he refuses to work on an election day when ordered to do so by his employer. [68]
Argued January 10, 1974, before Judges CRUMLISH, JR., MENCER and BLATT, sitting as a panel of three.
Appeal, No. 551 C.D. 1973, from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Louis Frumento, No. B-116320.
Application to Bureau of Employment Security for unemployment compensation benefits. Benefits denied. Decision of referee reversing determination and awarding benefits appealed by employer to Unemployment Compensation Board of Review. Decision reversed and benefits denied. Applicant appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
Marvin F. Galfand, with him Dragon, Verlin Galfand, for appellant.
Sydney Reuben, Assistant Attorney General, for appellee.
John C. Wright, Jr., for intervening appellee.
This is an appeal by Louis Frumento from an order of the Unemployment Compensation Board of Review (Board) denying him unemployment compensation benefits.
Frumento had been employed by Dominick Staffieri, Inc. (employer), as a compressor truck driver for approximately three years. In January of 1972, Frumento advised his employer that he had been elected judge of election and that it would be necessary for him to miss work on primary and general election days. The employer then told Frumento that permission for missing work on these two days would depend on the volume of work at the time. On April 24, 1972, Frumento advised his employer that he would miss work the next day, which was primary election day. His employer refused to give Frumento the day off and warned him that he would be discharged if he did not come to work. Frumento did not report for work and was discharged.
Frumento's application for unemployment compensation benefits was denied by the Bureau of Employment Security on the basis that his discharge resulted from his wilful misconduct. This determination was reversed by a referee upon appeal by Frumento. The referee's determination was then reversed by the Unemployment Compensation Board of Review which found Frumento ineligible to receive benefits because his discharge was for wilful misconduct. Frumento then brought the present appeal.
Our scope of review in unemployment compensation cases is confined to questions of law and, absent fraud, a determination as to whether the Board's findings are supported by the evidence. Shira v. Unemployment Compensation Board of Review, 10 Pa. Commw. 457, 310 A.2d 708 (1973). The sole issue presented by this appeal is a question of law; namely, whether or not Frumento's refusal to work on primary election day because he was judge of election is wilful misconduct.
Section 402(e) of the Unemployment Compensation Law, Act of December 5, 1936, Second Ex. Sess., P. L. (1937) 2897, as amended, 43 P. S. § 802(e), provides:
"An employe shall be ineligible for compensation for any week —
. . . .
"(e) In which his unemployment is due to his discharge or temporary suspension from work for willful misconduct connected with his work. . . ."
Although Section 402(e) does not define the term "willful misconduct," we have accepted the definition approved in Harmer Unemployment Compensation Case, 206 Pa. Super. 270, 272, 213 A.2d 221, 223 (1965): " 'Misconduct within the meaning of an unemployment compensation act excluding from its benefits an employee discharged for misconduct must be an act of wanton or wilful disregard of the employer's interest, a deliberate violation of the employer's rules, a disregard of standards of behavior which the employer has the right to expect of his employee, or negligence in such degree or recurrence as to manifest culpability, wrongful intent, or evil design, or show an intentional and substantial disregard of the employer's interest or of the employee's duties and obligations to the employer.' " See Harbutz v. Unemployment Compensation Board of Review, 10 Pa. Commw. 235, 309 A.2d 840 (1973).
Frumento's refusal to work as ordered by his employer, by itself, clearly fits the above definition. However, Frumento argues that his refusal to work does not constitute wilful misconduct because he had a duty to serve as judge of election and, therefore, a sufficient reason for disobeying his employer's order.
Although it is true that absence from work with good cause does not constitute wilful misconduct ( Kelleher v. Unemployment Compensation Case, 175 Pa. Super. 261, 104 A.2d 171 (1954)), we find that, under the circumstances of this case, Frumento's refusal to work and subsequent absence were without good cause.
Frumento volunteered to run for the position of judge of election even though he must have realized it would conflict with his job. He did not advise his employer of his intention to obtain this position until after he had been elected. We find that under these circumstances his refusal to work on primary election day was a wilful disregard of his employer's interest and therefore wilful misconduct under Section 402(e).
This Court recognizes that citizens should be encouraged to participate in the electoral process. However, we also recognize that such participation, when in conflict with the reasonable wishes of an employer, must be subordinate to the responsibilities incident to the employe's job.
ORDER
AND NOW, this 20th day of February, 1974, the order of the Unemployment Compensation Board of Review in regard to the claim of Louis Frumento is hereby affirmed.