Opinion
No. 1261 C.D. 2011
04-19-2012
Michael P. Luckenbaugh, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE SIMPSON
Michael Luckenbaugh (Claimant) petitions for review of an order of the Unemployment Compensation Board of Review (Board) that denied him unemployment compensation (UC) benefits under Sections 401(d)(1) and 402(a) of the Unemployment Compensation Law (Law) and Section 4001(d)(2) of the Emergency Unemployment Compensation Act of 2008 (EUC Act) for failing to show he had good cause for refusing suitable work offered by BCS Construction, Inc. (Employer). Claimant contends the referee failed to properly advise him of his rights as an unrepresented claimant, and the Board's decision was not supported by substantial, competent evidence. We affirm the Board.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §801(d)(1) and §802(a).
Title IV of the Supplemental Emergency Appropriations Act of 2008, P.L. 110-252, Section 4001, 26 U.S.C. §3304 (providing state law applies to claims for emergency unemployment compensation and their payment).
Claimant applied for emergency UC benefits. The local service center denied benefits pursuant to Section 402(a) and found a non-fraud overpayment of benefits pursuant to Section 4005(b) of the EUC Act. Claimant appealed, and a referee conducted a hearing at which Claimant and two witnesses for Employer testified.
At the beginning of the hearing, the referee advised both parties that they have the right to have an attorney or other advisor present, and the right to testify and submit testimony of relevant witnesses, as well as to cross-examine witnesses. The Board found the following facts based on the testimony.
Employer laid off Claimant for lack of work on January 19, 2011. Claimant was recalled to work on February 1, 2011, to start work on February 3rd at Employer's job site in Belle Vernon, Pennsylvania. The job involved performing the same duties Claimant performed at other sites. Claimant would be paid prevailing wage at a minimum, and the job was continuing and ongoing. Significantly, Claimant accepted this job initially when called, but informed Employer that he could not report to the job site until February 7, 2012, for personal reasons.
On February 7, 2012, however, Claimant advised Employer he could not report to the job site as he could not afford to travel to the location and had childcare issues. The Board found Claimant did not seek childcare and did not speak to other employees about transport to the job site. Employer informed Claimant that one worker was staying near the job site and was willing to share the costs with him. Claimant received $2,898 in EUC benefits as a non-fraud overpayment.
Although not among the findings, the testimony reflects that Claimant worked for Employer for three years performing various construction services. Notes of Testimony (N.T.) 4/14/11, at 8, 10. Belle Vernon is approximately 85 to 100 miles each way from Claimant's residence, depending on whether Claimant uses toll roads. Employer contended that Mapquest shows the driving time as "an hour and 45 minutes from Cresson," without specifying Claimant's address. N.T. at 10.
As to whether the offered employment was suitable, the referee determined Employer met its burden to show work was suitable and available as it was similar to the job Claimant performed prior to the lay-off. The referee also found that Claimant accepted the position at the time Employer recalled him. The referee determined Claimant was not able and available for work for the week ending February 5th because he refused to report to the job site when requested.
Regarding good cause for refusing available, suitable work, the referee concluded that Claimant did not meet his burden. The referee found Claimant admitted he did not seek alternate childcare, and he did not speak with other employees about transport to and from the site. The referee specifically noted Claimant contradicted himself during his testimony, and the referee did not find Claimant's various reasons for refusing work credible.
The referee concluded Claimant's contention that he was unable to afford to commute to and from the job site was insufficient to meet his burden. The referee deemed Claimant ineligible for benefits under Sections 401(d)(1) and 402(a) of the Law. He also held Claimant received a non-fraud overpayment for the weeks ending February 5, 2011 through March 12, 2011, under the EUC Act.
Claimant, now with counsel, appealed to the Board. The Board confirmed the facts as initially found by the referee, except as to the date Employer recalled Claimant to work. As such, the Board affirmed the referee's decision as modified. Claimant filed a petition for review to this Court.
The referee initially found that claimant was recalled to work on February 5, 2011, (F.F. 2) when the testimony and referee's reasoning reflect Employer recalled him on February 1, 2011, effective February 3, 2011. The Board modified the referee's finding accordingly.
Our review is limited to determining whether the necessary findings of fact were supported by substantial evidence, whether errors of law were committed, or whether constitutional rights were violated. Oliver v. Unemployment Comp. Bd. of Review, 5 A.3d 432 (Pa. Cmwlth. 2010) (en banc).
Claimant's main argument is that the Board should have reopened his case or remanded for another hearing because the referee did not advise him of his rights to counsel, to submit testimony, and to cross-examine witnesses, which prejudiced his claim. He claims to be functionally illiterate. Claimant also asserts he never "refused" the job, but rather could not take the job given its distance, which required and necessitated that he make arrangements for his daughters. He contends he had good cause for not reporting to work due to financial problems and family obligations as a single, custodial father of two daughters, which precluded staying overnight at the job site.
Claimant specifically challenges referee's Finding of Fact (F.F.) No. 2, that he was recalled to work, and he disputes that Employer informed Claimant that the job offered was ongoing (F.F. No. 5), that Employer offered the position on February 1, 2011 (F.F. No. 6), that Claimant advised Employer he had personal business and could report to work on February 7, 2011 (F.F. No. 7), that Claimant advised he could not afford to travel to the location (F.F. No. 9), that two days constitutes sufficient time to make child care arrangements (F.F. No. 10), and that there were other employees traveling to the job site (F.F. No. 11).
Claimant contends he did not refuse work, but rather advised he was unable to commit to the required travel for financial and familial reasons. Claimant seeks a remand to submit additional evidence to rebut the challenged findings. Claimant decries the process before the referee and substantively contests his ineligibility based on refusal of work.
We discern no merit in Claimant's due process challenge. The transcript reveals that the referee informed Claimant of his right to counsel and to present and cross-examine witnesses, and Claimant acknowledged he understood. N.T. at 1. The hearing notice also informed Claimant of these rights and his right to subpoena witnesses. Notwithstanding Claimant's alleged educational deficiencies, a referee does not serve as a claimant's advocate. See McFadden v. Unemployment Comp. Bd. of Review, 806 A.2d 955 (Pa. Cmwlth. 2002). The referee discharged his duties impartially here.
With regard to the first week of work ending February 5, 2011, Claimant did not challenge the referee's finding that he was unavailable under Section 401(d)(1) of the Law because he refused to start work on the date requested. Therefore, the issue is waived. See Williams v. Workers' Comp. Appeal Bd. (USX Corp.), 862 A.2d 137 (Pa. Cmwlth. 2004). The sole issue remaining before this Court is whether Claimant refused an offer of suitable work.
In determining a claimant's eligibility under Section 402(a), Employer bears the initial burden to show available, suitable work. See Treon v. Unemployment Comp. Bd. of Review, 499 Pa. 455, 453 A.2d 960 (1982); Shaffer v. Unemployment Comp. Bd. of Review, 531 A.2d 533 (Pa. Cmwlth. 1987) (claimant refused work due to commuting distance). Suitability is defined in part based upon "the distance of the available work from [a claimant's] residence." Section 4t of the Law, 43 P.S. §753(t). Generally, the fact-finder must consider the commuting distance of a job from a claimant's residence as a prerequisite to finding suitability. See Shaffer.
Employer's witnesses testified regarding the availability and suitability of work. The credited facts show the work was of the type Claimant performed before and that Claimant initially accepted the assignment. F.F. Nos. 4, 6. Although the fact-finder did not make a specific findings regarding the distance of this work or prior work from Claimant's home, the Board found transportation options and accommodations were available to Claimant which he did not explore. Substantial evidence thus supports the Board's findings.
Importantly, the Board found that claimant initially accepted the job. F.F. No. 6. A claimant's initial acceptance of a proffered job raises a presumption of the suitability of the job. Nat'l Aluminum Corp. v. Unemployment Comp. Bd. of Review, 429 A.2d 1259 (Pa. Cmwlth. 1981). As the job is "suitable," we look to whether Claimant's refusal to accept such work is without good cause. Shaffer.
Claimant bears the burden of proving good cause for refusal. Id. "Good cause" is defined as a "'good faith' effort consistent with the genuine desire to work and includes overcoming, as far as reasonably possible, any obstacles to the acceptance of work." Id. at 535.
Claimant alleges he had good cause in refusing the Belle Vernon position based on the distance and associated cost in reaching the destination. Claimant also identified familial obligations as "good cause" for refusal.
While the Board asserts Claimant failed to brief domestic responsibilities as one of his grounds for refusal, we disagree. Claimant noted his status as a single father, and "family problems" in his petition for review. Petition for Review at 4. Further, Claimant identified "family obligations" in his Statement of Questions Involved (IV), explained the obligations in his Statement of the Case, and cited at least one case discussing the issue, Dinges v. Unemployment Compensation Board of Review, 369 A.2d 898 (Pa. Cmwlth. 1977). See Pet'r's Br. at 5, 8, 14, 18, and 20. We thus conclude Claimant preserved the issue.
Domestic responsibilities may constitute "good cause" for refusing work. See King v. Unemployment Compensation Board of Review, 414 A.2d 452 (Pa. Cmwlth. 1980). Such domestic responsibilities may include finding childcare. Ganter v. Unemployment Comp. Bd. of Review, 723 A.2d 272 (Pa. Cmwlth. 1999). Childcare issues deserve individualized determinations given the facts. Id. We consider the age of the child, support needs, and attempts to consult with friends, relatives and day-care centers. King; Beachem v. Unemployment Comp. Bd. of Review, 723 A.2d 68 (Pa. Cmwlth. 2000) (regarding child's support needs).
In this case, Claimant's two daughters are in high school. Although Claimant testified that he did not have family in the area and that his wife recently passed away, Claimant admitted he did not make efforts to find alternate childcare. N.T. at 7. Absent a showing that he attempted to overcome the obstacle posed by needing childcare for possible overnight stays, Claimant cannot establish good faith in this regard. See Shaffer v. Unemployment Comp. Bd. of Review, 928 A.2d 391 (Pa. Cmwlth. 2007) (claimant failed to exhaust alternative childcare arrangements, and exploring one option did not suffice to show good cause for quit).
For transportation to constitute "good cause" for refusing work, the inconvenience must present an insurmountable problem. Id. This Court held that commuting distances of 80 to 100 miles constitute good cause for refusing work in the voluntary quit context. See Womeldorf, Inc. v. Unemployment Comp. Bd. of Review, 430 A.2d 722 (Pa. Cmwlth. 1981). But, we also held that a 60 mile commute, taking three hours, is not sufficient cause for voluntary termination. Musguire v. Unemployment Comp. Bd. of Review, 415 A.2d 708 (Pa. Cmwlth. 1980).
Cases decided under Section 402(b), addressing whether voluntary quit was for a necessitous and compelling reason are persuasive when making a determination on whether a claimant refused for good cause under Section 402(a). Shaffer v. Unemployment Comp. Bd. of Review, 531 A.2d 533 (Pa. Cmwlth. 1987).
We also consider the efforts a claimant must undertake to reach the location and whether such efforts are "insurmountable." The cost of any commute, and any offset of the cost by an employer is considered. Shaffer (finding $10.00 per diem sufficed to offset cost of 32-mile commute); Gonzales v. Unemployment Comp. Bd. of Review, 333 A.2d 513 (Pa. Cmwlth. 1975). In this regard, we consider availability of alternate transportation, such as public transportation or carpools, and associated costs. See Quality Bldg. Servs., Inc. v. Strobel, 498 A.2d 1 (Pa. Cmwlth. 1985); Shaffer; Gonzales. Each factor influences whether distance and related obstacles constitute "good cause" for a claimant's refusal. However, failure to test alternate transportation undermines any alleged good cause. See Hill v. Unemployment Comp. Bd. of Review, 415 A.2d 711 (Pa. Cmwlth. 1980) (good faith requires claimant to investigate transportation to the job site).
Claimant admitted he did not seek transportation remedies. N.T. at 8-9. Also, the record reflects that Claimant did not investigate overnight accommodations. Therefore, Claimant cannot be said to have attempted to overcome the obstacle posed by the distance in "good faith." Id. Moreover, the referee noted that Claimant's testimony as to why he was unable to accept the work was vague and inconsistent, and the Board expressly resolved conflicts in the testimony in favor of Employer. Considering the foregoing, the Board's findings are supported by substantial evidence.
For all the foregoing reasons, we affirm.
/s/_________
ROBERT SIMPSON, Judge ORDER
AND NOW, this 19th day of April, 2012, the Order of the Unemployment Compensation Board of Review in the above-captioned matter is hereby AFFIRMED.
/s/_________
ROBERT SIMPSON, Judge BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
DISSENTING OPINION BY SENIOR JUDGE FRIEDMAN
I respectfully dissent from the majority's decision to affirm the order of the Unemployment Compensation Board of Review (UCBR) denying Michael P. Luckenbaugh's (Claimant) claim for unemployment compensation benefits. I do not agree that Claimant refused suitable work without good cause.
First, I do not believe the position was "suitable" for Claimant. "Although '(o)ne who voluntarily accepts a job thereby admits to its initial suitability,' a claimant may successfully assert that the employment was so unsuitable as to be a compelling cause for leaving by proving that employment conditions have changed or that the claimant was deceived or unaware of such conditions when entering into the job." National Aluminum Corporation v. Unemployment Compensation Board of Review, 429 A.2d 1259, 1260 (Pa. Cmwlth. 1981) (quoting Sloss v. Unemployment Compensation Board of Review, 367 A.2d 803, 804 (Pa. Cmwlth. 1976)) (emphasis added). In other words, the presumption of suitability created by acceptance is rebuttable. See id.
In this case, on February 1, 2011, BCS Construction (Employer) contacted Claimant and offered him a job, starting February 3rd at Employer's jobsite in Belle Vernon, Pennsylvania. (N.T., 4/11/11, at 3-4.) Claimant previously worked for Employer at a different jobsite but had been laid off on January 19, 2011, due to lack of work. At the time Employer offered the position, Claimant was unemployed and receiving unemployment compensation. Claimant initially accepted the position, unaware of how far Belle Vernon was from his residence. (N.T., 4/11/11, at 7.) It was only after accepting the position that Claimant learned the job was located approximately eighty-five to one hundred miles each way from Claimant's residence and that it would take a travel time of approximately one hour and forty-five minutes to two and a half hours each way. (Id. at 7, 9-10). In Womeldorf, Inc. v. Unemployment Compensation Board of Review, 430 A.2d 722, 725 (Pa. Cmwlth. 1981), this Court considered a daily commute of eighty to one hundred miles each way to be excessive and good cause for a claimant to decline reassignment. Because Claimant was unaware of the job location when he initially accepted, I believe Claimant successfully rebutted the presumption of suitability. Had Claimant initially declined the position, there is no doubt that Claimant would still be receiving unemployment compensation benefits. See Womeldorf.
A claimant who is well aware of the travel distance upon accepting a position cannot later rebut the presumption of suitability on this basis. See, e.g., Shaw v. Unemployment Compensation Board of Review, 406 A.2d 608 (Pa. Cmwlth. 1979) (claimant admitted the suitability of work requiring a 200-mile round-trip commute by accepting it and continuing in it for three months); Sloss (claimant had accepted work in California, but after one month returned to Pennsylvania rather than relocate his family).
Moreover, even if the work offered was "suitable," I believe that Claimant demonstrated good cause for refusing the position. "This court has defined good cause as a good faith effort consistent with the genuine desire to work and includes overcoming, as far as is reasonably possible, any obstacles to the acceptance of an offer of work." Shaffer v. Unemployment Compensation Board of Review, 531 A.2d 533, 535 (Pa. Cmwlth. 1987) (citation and quotations omitted).
Here, Claimant testified that he is struggling financially and is ready, willing and able to return to work. (N.T., 4/11/11, at 7, 9.) Claimant refused the Belle Vernon position because of the unreasonable commuting distance. (Id.) Although Employer suggested that Claimant could share a hotel room with another employee, this was not a viable option for Claimant. (Id. at 5, 8.) Claimant explained that he is a single parent of two teenage daughters, who are in high school. (Id. at 7, 9.) Claimant testified that his wife died just prior to the position being offered to him. (Id. at 7.) Claimant testified that his daughters are still grieving the loss of their mother and need him. (Id.) Claimant further testified that he cannot leave his teenage daughters at home alone, unsupervised. (Id. at 7, 10.)
At the April 14, 2011, hearing, Claimant testified that his wife died three months earlier.
Claimant also cited monetary reasons for his refusal because he could not afford to set up the house and stock the pantry for his children, nor could he afford to pay for a hotel and food for himself if he chose to stay at the jobsite. (N.T., 4/11/11, at 6, 8.) The record reflects that Employer did not pay a per diem or provide an allowance for lodging, food and gas. (Id. at 8.)
The Majority states that Claimant did not make an effort to find alternate childcare. Claimant had less than a week to make arrangements for his children. (Id. at 3-5.) Claimant testified that he has no family to assist him with his daughters. Although teenagers may be capable of caring for themselves, they nevertheless require adult guidance and supervision. However, typical childcare or babysitting is not an option for teenagers. Regardless, Claimant did not have the money to pay for such services. (Id. at 6, 8.) While Claimant's daughters are in school for most of the day, had Claimant taken the job, Claimant would have been away from home fourteen to fifteen hours per day, which far exceeds the average school day and would have precluded Claimant from performing normal parenting duties, such as transporting his daughters to afterschool activities. (Id. at 8.) It is unreasonable to expect a single parent in Claimant's situation to sacrifice the well-being of his family for a job. Claimant should not be penalized merely because he grabbed at the chance of employment without fully understanding the distances involved. Claimant demonstrated an earnest effort to overcome the employment obstacles placed upon him by his domestic responsibilities but found it impossible to do so. I believe that Claimant's family situation amounted to "good cause" for ultimately refusing Employee's offer of employment. For these reasons, I do not believe that Claimant is ineligible for unemployment compensation benefits and, thus, I would reverse the order of the UCBR.
This Court has held that the inability of a parent to care for a child may constitute a necessitous and compelling reason for terminating employment. Ganter v. Unemployment Compensation Board of Review, 723 A.2d 272, 274 (Pa. Cmwlth. 1999). Typically, in order to prove a necessitous and compelling reason to quit, a claimant must establish that he or she exhausted all other alternative childcare arrangements, such as making a concerted effort to find another babysitter or a suitable day care center. Beachem v. Unemployment Compensation Board of Review, 760 A.2d 68, 72 (Pa. Cmwlth. 2000).
Claimant testified that his parents and his wife's parents are deceased; "all my daughters have is me." (N.T., 4/11/11, at 7-8.)
Underage drinking, drug use, premarital sex and teen pregnancy are legitimate concerns. Even the most well-behaved child can be tempted when there is no parental or adult supervision.
See Beachem, 760 A.2d at 72 (benefits were approved where a father left his job in Alabama to move to Pennsylvania to provide needed emotional support to his troubled eleven-year-old son). --------
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge