Opinion
No. 162 C.D. 2015
07-14-2015
James A. Funk, Petitioner v. Unemployment Compensation Board of Review, Respondent
OPINION NOT REPORTED
MEMORANDUM OPINION
James A. Funk (Claimant) challenges the Order of the Unemployment Compensation Board of Review (Board) which affirmed the Referee's determination that Claimant was ineligible for benefits under Section 402(b) of the Unemployment Compensation Law (Law).
Act of December 5, 1936, Second Ex. Sess., P.L. (1937), 2897, as amended, 43 P.S. §402(b).
The facts, as initially found by the Referee and confirmed by the Board, are as follows:
1. The Claimant was last employed as a part-time Janitor with Rockville Management Group from 2006 through September 26, 2014, at a final rate of pay of $15 per hour, working 13 hours per week.
2. On June 27, 2014, the Employer left a message for the Claimant asking him to wring out the mop real hard because the floor was still wet. When the floor is too wet, the water gets into the seams of the linoleum.
3. About three months prior to the Claimant's separation, the Employer left the paper towel dispenser empty on a Tuesday to see if the Claimant was doing his job and would fill the paper towel dispenser.
4. When the Employer returned to the location three days later on Friday, the paper towel dispenser was still empty.
5. On September 14, 2014, the Employer's wife left a message for the Claimant, asking him to please change the trash can bags more often because she did not want dirty smelly disgusting bags in the cans.
6. On September 23, 2014, the Employer implemented a checklist for the Elizabethtown location where the Claimant worked.
7. The Employer implemented the checklist because things were being missed.
8. The Employer had implemented a checklist in the Lebanon location two or three years ago.
9. On September 23, 2014, the Claimant left a voice message for the Employer stating that he would be okay with the checklist but felt it was a slap in the face.
10. When the Employer went to the location on September 26, 2014, the Claimant had not completed the checklist.
11. The Claimant had a discussion with the Employer regarding the checklist and the Employer told the Claimant the checklist was non-negotiable.
12. The Claimant provided a verbal resignation effective immediately.
13. The Claimant resigned because he felt the checklist was an insult to his work and that he was being borderline harassed by the Employer.
14. Continuing work was available.Referee's Decision, November 21, 2014, (Decision) Findings of Fact (F.F.) Nos. 1-14 at 1-2.
The Referee determined:
In the present case, the Claimant testified he resigned because he was insulted when the Employer implemented a checklist. The Claimant resigned rather than complete the checklist.Decision at 2.
The Employer provided valid reasons for implementing the checklist and testified that he has a checklist for other employees at a different location and that checklist had been in effect for a few years. As such, there was no disparate treatment of employees. As the owner, the Employer has the right to implement changes, including the checklist.
The Referee cannot agree that the messages left to the Claimant by the Employer and the Employer's spouse were insulting or harassing in nature. The Claimant did not provide testimony to show that the implementation of the checklist was a unilateral change to the working conditions which rendered the employment intolerable. The Claimant has not sustained his burden to show that circumstances existed which produced real and substantial pressure to terminate his employment or that he made a reasonable effort to preserve the employment relationship. Accordingly, the Claimant is ineligible for benefits under Section 402(b) of the Pennsylvania Unemployment Compensation Law.
The Board affirmed.
Claimant raises twenty-seven issues on appeal. Essentially, Claimant contends that the Board erred when: 1) it adopted the Referee's findings of fact because they were unsupported by substantial and competent evidence; 2) it determined that Claimant was adequately assisted by the Referee; and 3) it did not conclude that Claimant was denied due process.
This Court's review in an unemployment compensation case is limited to a determination of whether constitutional rights were violated, errors of law were committed, or findings of fact were not supported by substantial evidence. Lee Hospital v. Unemployment Compensation Board of Review, 637 A.2d 695 (Pa. Cmwlth. 1994).
I. Whether The Referee's Findings Of Fact Were Supported By Substantial
And Competent Evidence?
Claimant challenges the Board's determination that he voluntarily abandoned his employment without a necessitous and compelling reason and as a result was ineligible for benefits under Section 402(b) of the Law.
Section 402(b) of the Law, 43 P.S. §802(b), provides that a claimant shall be ineligible for compensation in any week in which his unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature. Where an unemployment compensation claimant alleges that he or she terminated employment for necessitous and compelling reasons, claimant has the burden of establishing the existence of such reasons.
Whether a termination of employment is voluntary is a question of law subject to this Court's review. The failure of an employee to take all reasonable steps to preserve employment results in a voluntary termination. Westwood v. Unemployment Compensation Board of Review, 532 A.2d 1281 (Pa. Cmwlth. 1987). Good cause for voluntarily leaving one's employment results from circumstances which produce pressure to terminate employment that is both real and substantial and which would compel a reasonable person under the circumstances to act in the same manner. Philadelphia Parking Authority v. Unemployment Compensation Board of Review, 654 A.2d 280 (Pa. Cmwlth. 1995).
Here, Claimant viewed the implementation of a checklist as harassment by Rockville Management Group (Employer), which also created a hostile work environment.
Edward P. Berkoski (Mr. Berkoski), owner of Employer, testified that during the week of September 22, 2014, he implemented a checklist because "[t]here were several items being missed cleaned [sic] on a weekly basis. We felt, you know, just having a checklist, no additional duties, just his normal duties we want marked off that they were completed on a morning shift or the afternoon shift." Notes of Testimony, November 21, 2014 (N.T.) at 13. Mr. Berkoski also noted that employees at other locations were also required to complete a checklist and that the policy was in place a few years prior. N.T. at 13. On Tuesday, September 22, 2014, Claimant agreed to complete the checklist but informed Mr. Berkoski that he thought it was harassment and "kind of like a slap in the face." N.T. at 15. On Friday, September 26, 2014, Mr. Berkoski learned that Claimant did not complete the checklist that week. Mr. Berkoski informed Claimant that completing the checklist was nonnegotiable and Claimant "handed his keys over...." N.T. at 16. Mr. Berkoski stated that until September 23rd and 26th of 2014, Claimant never mentioned that he felt he was being harassed or insulted about the quality of his work. N.T. at 18. Mr. Berkoski testified that continuing work was available to Claimant. N.T. at 17-18.
Claimant referenced several prior incidents that he also viewed as harassment.
Around June of 2014, Mr. Berkoski admitted that he purposely left the paper towel dispenser empty to see if Claimant would notice and refill it as required by the checklist. N.T. Claimant did not refill the paper towel dispenser because he did not notice that it was empty. N.T. at 8. Claimant testified that this lack of "teamwork" created an "unfair situation." N.T. at 8.
Claimant argues he was subjected to harassment when Mr. Berkoski's wife left Claimant a note because he failed to replace the "dirty, smelly, disgusting" trash can liners. N.T. at 10. Claimant felt the wording of the note was "insulting." N.T. at 10. Mr. Berkoski explained that he didn't expect Claimant to replace the trashcan liners daily, but on an asneeded basis. N.T. at 17.
Mr. Berkoski also testified that there were several incidents where customers complained because Claimant left too much water on the floor after mopping. N.T. at 17.
The Pennsylvania Supreme Court has determined that employees may be permitted to collect unemployment compensation benefits after they have voluntarily ceased employment "when...the pressure of real not imaginary, substantial not trifling, reasonable not whimsical, circumstances compel the decision to leave employment, the decision is voluntary in the sense that the worker has willed it but involuntary because outward pressures have compelled it." Taylor v. Unemployment Compensation Board of Review, 378 A.2d 829 (Pa. 1977).
In the present case, Claimant merely protested the implementation of a checklist "to make sure all the job duties were being completed." N.T. at 20. This will not be considered a "necessary or compelling" reason. Additionally, the paper towel incident was not the cause of Claimant's separation because it occurred about three months prior to Claimant's separation. Simply, Claimant has provided no evidence to support his harassment claim. His subjective and very negative construction of the checklist does not constitute substantial evidence of harassment.
II. Whether Claimant Was Adequately Assisted By The Referee?
Claimant, who appeared pro se at the hearing, also argues that the Referee failed to properly assist him. This Court must disagree.
The Department of Labor and Industry's regulation describes how a hearing must be conducted:
(a) in any hearing the tribunal may examine the parties and their witnesses. Where a party is not represented by counsel the tribunal before whom the hearing is being held should advise him as to his rights, aid him in examining and cross-examining witnesses, and give him every assistance compatible with the impartial discharge of its official duties.34 Pa. Code §101.21(a).
This Court has stated:
The referee has a responsibility, therefore, to assist a pro se claimant at a hearing so that the facts of the case necessary for a decision may be adequately developed to 'insure that compensation will not be paid in cases in which the claimant is not eligible and that compensation will be paid if the facts, thoroughly developed, entitled the claimant to benefits.'...The referee, of course, need not advise a party on evidentiary questions or on specific points of law but must act reasonably in assisting the development of the necessary facts, and any failure to
develop an adequate record must be prejudicial to the claimant and not mere harmless error or else a reversal will not be found.Bennet v. Unemployment Compensation Board of Review, 445 A.2d 258, 259-260 (Pa. Cmwlth. 1982) (emphasis, citation and footnotes deleted) quoting Robinson v. Unemployment Compensation Board of Review, 431 A.2d 378, 380 (Pa. Cmwlth. 1981).
Claimant argues that the Referee did not adequately assist him with his subpoena of work notebooks, which allegedly documented Claimant's communications with Mr. Berkoski, and failed to provide Claimant time to review the notebooks at the hearing.
A review of the record reveals that Claimant contacted the Referee on November 17, 2014, and was informed that his subpoena was ready for retrieval from the Referee's office so that Claimant could serve the subpoena on his Employer. Claimant responded that "he would try to figure something out." Report of Telephone Call on Hearings at 1. At the hearing, Claimant stated that he "didn't realize that I was supposed to pick them [the work notebooks] up. I assumed that I was supposed to look at them in court." N.T. at 10. At the hearing, Referee instructed Mr. Berkoski to give the notebooks to Claimant for his review. Claimant was permitted to submit the pertinent entries from the work notebook into the record. N.T. at 10-11. At no point did Claimant ask the Referee for a brief recess so that he could review the work notebooks.
This Court discerns no impropriety in the Referee's conduct of the hearing. In fact, it reveals the opposite. At the beginning of the hearing the Referee advised, "If either of you have questions during the hearing please let me know." N.T. at 4. Throughout the course of the hearing, the Referee acted impartially, yet extensively questioned Claimant in an effort to establish the circumstances of Claimant's termination of employment. Contrary to Claimant's assertion that the Referee "chastised" him during his closing statement, the Referee merely acknowledged that she gave Claimant "a lot of latitude" with his testimony for which Claimant thanked her. N.T. at 21.
The Referee also questioned Employer's witness, Mr. Berkoski, in order to develop the necessary facts. Claimant was adequately assisted by the Referee at the hearing as required by the regulation.
III. Whether Claimant Was Denied Due Process?
Finally, Claimant argues that he was denied due process because the Law is "unfair" and "fixed against the Claimants." Claimant's Brief at 11. More specifically, Claimant argues that there was a conflict of interest and a denial of due process because the same Board that affirmed the Referee's denial of benefits reviewed the Request for Reconsideration.
The Board's regulations mandate that a Request for Reconsideration be made:
a) Within 15 days after the issuance of the decision of the Board, as may be determined by the provisions of § 101.102 (relating to form and filing of application for
further appeal from decision of referee), any aggrieved party may request the Board to reconsider its decision and if allowed, to grant further the opportunity to do the following:
(1) Offer additional evidence at another hearing.
(2) Submit written or oral argument.
(3) Request the Board to reconsider the previously established record of evidence.
34 Pa. Code § 101.111. (Emphasis added.)
b) The requests will be granted only for good cause in the interest of justice without prejudice to any party. The parties will be notified of the ruling of the Board on each such request. The request for reconsideration and the ruling of the Board shall be made a part of the record and subject to review in connection with any further appeal to the Commonwealth Court.
Claimant essentially raised the same arguments in his Request for Reconsideration that he raised before this Court. The Board did not abuse its discretion when it refused reconsideration.
Accordingly, the decision of the Board is affirmed. PER CURIAM ORDER
AND NOW, this 14th day of July, 2015, the Order of the Unemployment Compensation Board of Review in the above-captioned matter is affirmed.