Hambridge Steel Erectors, Inc. v. Unemployment Compensation Board of Review

Dissenting Opinion by

Hoffman, J.:

In my opinion the majority has clouded the issue in this case by framing it in terms of a request for in*429creased wages. The real issue in this case is whether an employer may require that his employee work overtime without paying him for this additional work.

The majority, while recognizing the rule that the Board’s findings of fact, if supported by evidence, are conclusive on appeal, Progress Manufacturing Company, Inc. v. Unemployment Compensation Board of Review, 406 Pa. 163, 176 A. 2d 632 (1962), nonetheless, chooses to ignore these findings.

The Board specifically found that “claimant was originally hired on a straight salary of $80.00 per week and the hours of work were established as 7:00 a.m. to 5:00 p.m.” (Emphasis added)

“4. From time to time, due to the nature of the employer’s business, the claimant was required to work overtime, and the claimant on numerous occasions discussed the overtime work with his employer with the point in view of establishing some plan by which he would be paid for the overtime work that he would be required to perform.

“5. When the employer failed to establish any method or basis for paying the claimant for overtime work, he gave notice to his employer and voluntarily terminated his employment because of this fact.

“In the instant case, the claimant, who was a salaried employee, was from time to time required to work additional hours of overtime for which he was not compensated. . . .”

The majority refers to testimony by the employer that there was to be no overtime pay. The Board, however, did not believe this testimony and did not find that there was such an understanding.

The Board did believe the testimony of Bone who stated that he often worked until 9:30 at night but, “I never received any pay for those hours. I often asked about it. ... A lot of days I worked two half days on *430Saturdays and did not get paid for it.” (Record 23a-24a). I cannot agree that a man who takes a salaried position based on a ten hour work day and is then required to work five additional hours a day without additional pay, is compelled to work under these conditions and cannot voluntarily terminate his employment. The majority’s reference to Disario Unemployment Compensation Case, 193 Pa. Superior Ct. 517, 165 A. 2d 111 (1960), in this regard is totally inapplicable. In Disario, the claimant was merely seeking higher wages. In the instant case, however, claimant has been denied any compensation for extra work which he never expected and which was never part of the original employment agreement. Under such circumstances, I would affirm the finding of the Board that Rone’s voluntary termination of his employment must be deemed to have been for cause of a necessitous and compelling nature.