DiVergigelis v. Commonwealth

547 A.2d 513, 119 Pa. Commw. 431, 1988 Pa. Commw. LEXIS 729
CourtCommonwealth Court of Pennsylvania
DecidedSeptember 14, 1988
DocketAppeals Nos. 1766 C.D. 1987, 1767 C.D. 1987, 1768 C.D. 1987, 1769 C.D. 1987 and 1770 C.D. 1987
StatusPublished
Cited by1 cases

This text of 547 A.2d 513 (DiVergigelis v. Commonwealth) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
DiVergigelis v. Commonwealth, 547 A.2d 513, 119 Pa. Commw. 431, 1988 Pa. Commw. LEXIS 729 (Pa. Ct. App. 1988).

Opinion

Opinion by

Senior Judge Barbieri,

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[433]*433conduct pursuant to Section 402(e) of the Unemployment Compensation Law.1

Claimants were all terminated from their employment2 with M.L. Dessert Corporation (Employer) for their alleged participation in an illegal strike at the Employers plant at Seventh Street and Lindley Avenue in Philadelphia.

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 agreement3 between the Employer and the Union prohibited strikes, lockouts, work interruptions, boycotts, temporary walkouts or production slowdowns and provides for the immediate discharge of any employee who violates this provision.

By letter dated April 17, 1986,4 a shop steward was suspended pending dismissal for “verbally and physically assaulting” one of the Employers vice presidents. The Employers assistant production manager testified that there were rumors that the plant employees were planning a “walkout” on Saturday, April 19, 1986, in response to this disciplinary action. No walkout in fact occurred on Saturday. The assistant plant manager testified further that at approximately 10:00 a.m. on Sunday, April 20, 1986, the business agént for the Unión came into the plant and was granted permission to speak to [434]*434the shop committee. At approximately 1:15 p.m., various employees began to leave the Employers premises claiming they were ill and gathered across the street from the plant. Additional employees who were scheduled for the following shifts on Sunday and Monday began calling the Employer, claiming they were ill or could not come in to work for various reasons.

According to the assistant plant manager only thirteen of eighty-one regularly scheduled employees reported to work on Monday, April 21, 1986.5 A Number of employees were observed gathered across the street from the plant on both Sunday and Monday. The assistant plant manager testified that the group carried signs indicating they were on strike.6

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 [435]*435August 20, 1986. After the hearings, the referee denied benefits to Claimants DiVergigelis, Ryan and Gallo and granted benefits to Claimants Ward and Long. Claimants DiVergigelis, Ryan and Gallo appealed the denial of benefits to the Board and the Employer appealed the referees grant of benefits to Claimants Ward and Long. The Board found that all the Claimants had participated in the illegal strike and had therefore concluded they had engaged in willful misconduct.

On appeal to this Court, Claimants contend that their claims should have been analyzed under Section 402(d) of the Law7 rather than Section 402(e) and that the Board improperly found that the Claimants were involved in the illegal strike despite compelling evidence to the contrary. Claimants Ward and Long contend that the Board erred by finding they had participated in the illegal strike when the referee found otherwise.

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 procedure8 have been violated, an error of law has been committed, or whether essential findings of fact are supported by substantial evidence. Kirkwood v. Unemployment Compensation Board of Review, 106 Pa. Commonwealth Ct. 92, 525 A.2d 841 (1987).

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 [436]*436week “[i]n which his unemployment is due to his discharge or temporary suspension from work for willful misconduct. . . .”

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.9

[437]*437Claimant Ward had scheduled a personal day on Sunday, April 20, 1986. The assistant plant manager testified that he saw Claimant, Ward seated in his car across the street from the plant with a group of striking employees between 9:00 p.m. and 10:00 p.m. on Sunday. 10 Claimant Ward denied being across the street at that time.

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Cite This Page — Counsel Stack

Bluebook (online)
547 A.2d 513, 119 Pa. Commw. 431, 1988 Pa. Commw. LEXIS 729, Counsel Stack Legal Research, https://law.counselstack.com/opinion/divergigelis-v-commonwealth-pacommwct-1988.