DiVergigelis v. Commonwealth
DiVergigelis v. Commonwealth
Opinion of the Court
Opinion by
Angie DiVergigelis, Kelliann Ryan, Helen Gallo, Leo Ward, and Sarah Long (Claimants) appeal orders of the Unemployment Compensation Board of Review (Board) denying them benefits on account of willful mis
Claimants were all terminated from their employment
Claimants are all members of the Bakery, Confectionery and Tobacco Workers International Union AFL-CIO-CLC Local No. 6 (Union). Article 11 of the collective bargaining agreement
By letter dated April 17, 1986,
According to the assistant plant manager only thirteen of eighty-one regularly scheduled employees reported to work on Monday, April 21, 1986.
The Union disclaimed any responsibility for calling a strike or walkout on April 20th or 21st in violation of the collective bargaining agreement. Various employees including Claimants were terminated for participating in the illegal strike. Claimants filed for benefits and the Office of Employment Security (OES) granted benefits to Claimants, DiVergigelis, Gallo, and Ward. Benefits were denied Claimants Ryan and Long. On June 18, 1986, a hearing was held before the referee concerning the termination of twelve employees other than Claimants. Pursuant to a stipulation between the parties, general background testimony elicited in that hearing would be incorporated into the record in subsequent claims of employees who were terminated for allegedly participating in the illegal strike.
A hearing before the referee on the appeals of Claimants DiVergigelis, Gallo, Ward and Ryan was held on July 9, 1986. Claimant Longs hearing was held on
On appeal to this Court, Claimants contend that their claims should have been analyzed under Section 402(d) of the Law
We note initially that our scope of review is limited to determining whether constitutional rights or the provisions of the Administrative Agency Law relating to practice and procedure
Section 402(d) of the Law denies compensation to any employee for any week “[i]n which his unemployment is due to a stoppage of work, which exists because of a labor dispute (other than a lock-out) at the factory, establishment or other premises at which he is or was last employed. . . .” Section 402(e) of the Law provides that a claimant shall be ineligible for benefits for any
In Penflex, Inc. v. Bryson, 506 Pa. 274, 485 A.2d 359 (1984), our Supreme Court specifically approved a line of decisions holding that employees who have violated the collective bargaining agreement by participating in an illegal work stoppage have engaged in willful misconduct and are thus ineligible to receive benefits if they are terminated. Therefore, the Board properly analyzed Claimants’ appeals under Section 402(e) of the Law.
We next turn to Claimants’ contention that the Board improperly found they participated in the illegal strike despite the referee’s findings in the Ward and Long appeals and the Claimants’ testimony to the contrary. A resolution of this question requires an examination of the evidence in the case of each Claimant.
Claimants DiVergigelis and Gallo reported to work on Sunday morning, April 20, 1986. At approximately 1:30 p.m., Claimant DiVergigelis informed her supervisor that she was suffering from a headache and cramps and was going home. At the same time Claimant Gallo complained of stomach cramps and diarrhea and left work also. The Employer’s assistant plant manager testified he saw both Claimants join the group of striking workers across the street from the plant after leaving work. Claimant DiVergigelis maintained she sat on the Employer’s steps for lVz hours waiting for her husband to pick her up and Claimant Gallo testified her car had a flat tire and she waited across the street from the plant for her nephew to fix it. Both Claimants were scheduled to work the following day at 9:00 a.m. but both telephoned the Employer claiming they were ill.
According to a daily attendance record,
Claimant Long was scheduled to work at 3:00 p.m. on Sunday but called the Employer claiming she could not come in due to illness. Claimant reported off ill the following day as well. A physicians excuse for Claimant Long was submitted to which a hearsay objection was raised.
Claimants were terminated for participating in an illegal strike or walkout. The referee found that Claimants DiVergigelis, Ryan, and Gallo were not ill on April 20th and 21st but were capable of working if they wanted to. The referee then found they had participated in the illegal strike. However, the referee found that Claimants Ward and Long did not participate and granted them benefits. In reversing the referees decisions with regard to Claimants Ward and Long, the Board found that these Claimants were not ill but had participated in the illegal strike.
Although the Board is the ultimate finder of fact in unemployment compensation proceedings, Rodrigques v. Unemployment Compensation Board of Review, 58 Pa. Commonwealth Ct. 362, 427 A.2d 1255 (1981); Treon v. Unemployment Compensation Board of Review, 499 Pa. 455, 453 A.2d 960 (1982); its power is not unlimited. In Treon, our Supreme Court held that where the referees findings are based on uncontradicted evidence, the Board is not free to disregard those findings. However, in Peak v. Unemployment Compensation
In this case there is conflicting testimony as to whether Claimants Long and Ward participated in the strike. It was within the province of the Board as the final arbiter of fact to disbelieve the explanations which Claimants Ward and Long gave for their absences.
Accordingly, we will affirm the Boards order.
Order
And Now,, this 14th day of September, 1988, the orders of the Unemployment Compensation Board of Review in the above-captioned matters are affirmed.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(e).
Claimants DiVergigelis, Ryan and Long were employed as machine operators, Claimant Gallo was employed as a line worker and Claimant Ward was a sanitation department employee.
The collective bargaining agreement in question was originally between Mrs. Smiths Pie Company and the Union and covered the period July 2, 1983 through July 1, 1986. The Employer purchased Mrs. Smiths Pie Company and assumed the collective bargaining agreement which was extended through June 30, 1987.
See Employers Exhibit 3 to referees hearings on June 18, 1986, July 9, 1986, and August 20, 1986 (referees hearings).
Notes of Testimony from June 18, 1986 referees hearing' (N.T.) at 53; Notes of Testimony from second portion of July 9, 1986 referees hearing (N.T. II) at 1.
N.T. II at 11.
43 P.S. §802(d).
Sections 501-508 of the. Administrative Agency Law, 2 Pa. C. S. §§501-508.
Both Claimants submitted doctors’ excuses for their absences before the referee, to which the Employer raised hearsay objections.
N.T. II at 21.
Employers Exhibit 15 to referees hearings.
See Employers Exhibit 10 to referees hearings.
Notes of Testimony from August 20, 1986 referees hearing at 76.
Id.
It is clear that in awarding Claimant Long benefits, the referee considered the doctors excuse which was submitted by her counsel. This evidence was properly objected to as hearsay and therefore, could not be used to support a finding by the referee. See, Walker v. Unemployment Compensation Board of Review, 27 Pa. Commonwealth Ct. 522, 367 A.2d 366 (1976).
Case-law data current through December 31, 2025. Source: CourtListener bulk data.