Opinion
No. 162 C.D. 2012
08-30-2012
Mark J. Small, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH
Mark J. Small (Claimant) petitions for review of the January 23, 2012 order of the Unemployment Compensation Board of Review (Board) that affirmed a referee's decision and held that Claimant was ineligible for unemployment compensation benefits pursuant to section 402(b) of the Unemployment Compensation Law (Law). For the reasons set forth below, we affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(b). Pursuant to section 402(b) of the Law, an employee is ineligible for compensation for any week in which his unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature.
Claimant worked for Hickory Hill Transport Co., Inc. (Employer) as a tractor trailer driver from April 4, 2010, until July 11, 2011. Claimant's duties included the pick-up and delivery of raw milk from dairy farms to processing facilities in various states. In order to complete these duties, Claimant was required to possess and maintain a commercial driver's license (CDL).
On July 11, 2011, Claimant voluntarily left his employment. The local service center determined that Claimant was ineligible for benefits under section 402(b) of the Law and denied his application for benefits. Claimant timely appealed, and a referee's hearing was held on October 12, 2011, wherein Claimant and Employer's owner, Raymond E. Hunter, testified.
Claimant testified that he left his employment because he was illegally working too many hours and hauling excessive weight. (Reproduced Record (R.R) at 7a, 9a.) In support of his claims, Claimant relied upon U.S. Department of Transportation Federal Motor Carrier Safety Administration rules and regulations, which outline specific limitations of driving hours and trailer load weights. (Claimant's Exhibits 1, 2.) Claimant also entered weight tickets dated June 30, 2011, through July 8, 2011, which indicate truck weights 4,000 to 12,000 pounds in excess of regulation standards. (Claimant's Exhibit 3.) Claimant further testified that penalties for excessive hours or weight may include the truck being shut down, fines, and points on the driver's CDL. (R.R. at 10a.) Claimant stated that the fines for these violations would be levied against the driver, not his employer. (R.R. at 11a.)
Claimant testified that he told Hunter that he was concerned about driving excessive hours, but Claimant said that Hunter would do no more than talk about it. (R.R. at 12a.) Claimant further testified that he attempted to talk to Hunter about his concerns regarding exceeding the legal weight limit many times, but Hunter responded by asking if there was any space left in the trailer. (R.R. at 19a.) Because Hunter knew the weights of each trailer, Claimant believed that Hunter was really telling Claimant to fill to the trailer's capacity. (R.R. at 19a.)
Claimant testified that his work week was from Monday through Friday. (R.R. at 13a-14a.) He explained that on Mondays, Wednesdays and Fridays he would pick up and deliver, but on Tuesdays and Thursdays he would come back empty. (R.R. at 16a.) Claimant testified that he walked off the job on July 11, 2011, because if he took the Tuesday assignment he would end the week driving the truck "without hours." (R.R. at 16a.) Claimant acknowledged that he would not have exceeded permissible hours if he had taken his assigned route. (R.R. at 13a.)
In response to Claimant's allegations, Hunter testified that in August 2010, Claimant, without providing any reason, informed Hunter that Claimant was no longer going to work on Saturdays. (R.R. at 21a.) Hunter also testified that more recently, Claimant refused to take the Tuesday and Thursday runs to New Jersey. (R.R. at 21a-22a.) Hunter said that Claimant apparently felt as though he should not have to take the New Jersey run because it was an undesirable assignment and may have actually cost Claimant a day's work. (R.R. at 22a-23a.) According to Hunter, Claimant said that if he were to be sent to New Jersey, he would quit. (R.R. at 22a.) Hunter testified that he attempted to accommodate Claimant's requests but eventually a day came where a load needed to go to New Jersey. (R.R. at 22a-23a.) Hunter stated that when he informed Claimant that he was being sent to New Jersey, Claimant responded by asking, "So you mean I got to lose a day's work because I got sent to New Jersey?" (R.R. at 23a.) Hunter said he told Claimant there was a delivery to take up there, but Claimant went out to his truck, took his belongings, and left. (R.R. at 23a.) Hunter testified that he had no intentions of firing Claimant and that continuing work remained available for him. (R.R. at 23a.)
Hunter further testified that he and Claimant never had a discussion regarding overweight trailers. (R.R. at 24a.) However, Hunter admitted that the trucks sometimes run overweight, explaining that regulations prohibit the trucks from leaving any milk in a farm's tank. (R.R. at 24a-25a.) Hunter acknowledged that he had asked Claimant how much room remained in the trailer, but he also stated that he did not and would not tell Claimant to fill the trailer up regardless of the weight. (R.R. at 26a.) Finally, Hunter testified that he never asked Claimant to violate the law. (R.R. at 27a.)
Following the evidentiary hearing, the referee accepted Hunter's testimony as credible and made the following findings of fact:
1. The claimant was employed as a Tractor Trailer Driver from April 2010 until his last day worked on July 11, 2011 at a final rate of $175 - $200 per day.
2. The Claimant was paid by the load and by delivery.
3. In August 2010, the Claimant told the Employer he didn't want to work weekends any longer. The Claimant did not provide the Employer with the reason for restricting his hours.
4. The Claimant later informed the Employer he no longer wanted to transport loads to northern New Jersey or New York.
5. On or about July 11, 2011, the Employer informed the Claimant that he was scheduled to drive a load the next day for delivery in northern New Jersey or New York.
6. The Claimant refused.
7. The Claimant terminated his employment.
8. Prior to quitting, the claimant did not inform the Employer of his concerns regarding weight restrictions on loads.
9. Prior to quitting, the Claimant did not inform the Employer of any concerns regarding number of hours spent driving and hours performing other tasks.(Findings of Fact Nos. 1-9.) The referee did not address Claimant's allegations that he was required to perform his job illegally. Based on the above findings, the referee affirmed the local service center's determination that Claimant was ineligible for benefits under section 402(b) of the Law. Claimant appealed to the Board, which affirmed the referee's decision and adopted the referee's findings and conclusions. Claimant now appeals to this Court.
Our scope of review in an unemployment compensation appeal is limited to determining whether constitutional rights were violated, whether an error of law was committed, or whether necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704. --------
In order to be eligible for benefits, a claimant who voluntarily quits his employment bears the burden of proving his voluntary termination was for necessitous and compelling cause. Kligge v. Unemployment Compensation Board of Review, 491 A.2d 1031 (Pa. Cmwlth. 2002). A claimant satisfies that finding by demonstrating that: (1) circumstances existed which produced real and substantial pressure to terminate employment; (2) such circumstances would compel a reasonable person to act in the same manner; (3) the claimant acted with ordinary common sense; and (4) the claimant made a reasonable effort to preserve his employment. Brunswick Hotel and Conference Ctr., LLC v. Unemployment Compensation Board of Review, 906 A.2d 657 (Pa. Cmwlth. 2006). Whether a claimant had a necessitous and compelling reason to quit is a question of law subject to this Court's review. Craighead-Jenkins v. Unemployment Compensation Board of Review, 796 A.2d 1031 (Pa. Cmwlth. 2002).
Claimant first argues that the Board erred in concluding that he was ineligible for benefits pursuant to section 402(b) because he presented sufficient evidence demonstrating he possessed a necessitous and compelling reason to quit. In support of this argument, Claimant relies on Fleeger v. Unemployment Compensation Board of Review, 528 A.2d 264 (Pa. Cmwlth. 1987), and maintains that requiring an employee to violate federal safety regulations provides an employee who has legitimate safety concerns a justification for leaving his employment.
In Fleeger, a truck driver voluntarily left his employment alleging that his employer required him to work excessive hours in violation of federal safety regulations. The claimant testified that he complained to three dispatchers and a supervisor that he was expected to violate federal safety regulations. The situation was not resolved and the claimant eventually quit.
Relying on testimony of the employer's witness, the Board first found that it was an employee's responsibility to keep track of his hours and notify the employer when he was "out of hours." Id. at 267. The Board also found that the claimant reported to a dispatcher that he was required to drive excessive hours but failed to report his safety concerns to the terminal manager. The Board affirmed the referee's determination that the claimant did not have a necessitous and compelling cause to voluntarily leave his employment.
On appeal, this Court first observed that, under federal regulations, a motor carrier has the duty to require its drivers to observe the maximum hours they may drive. Id. We also cited testimony and evidence offered by the claimant, but not addressed by the Board, to the effect that the employer required him to violate federal regulations. We observed in Fleeger that if the Board found that testimony credible, the claimant would have established legitimate safety concerns that would justify leaving his employment. In addition, we concluded that the claimant had no obligation to report his concerns specifically to the terminal manager. Because the Board found that the claimant had informed his employer and made an effort to change the employer's practices, but did not identify which individuals the claimant informed or make any findings as to whether or not the claimant was, in fact, required to violate federal law during the course of his employment, we vacated the Board's decision and remanded the matter for additional necessary findings.
In contrast to the facts in Fleeger, in this case the Board did not accept Claimant's testimony that he discussed violations of federal regulations restricting truck weight or driving hours. Instead, the Board credited Hunter's testimony and found that Claimant had not discussed his concerns regarding weight or hours with Employer prior to quitting. (Findings of Fact Nos. 8-9.) Moreover, the Board found that Claimant quit because he was unhappy with his assignment to transport a load to New Jersey, a reason unrelated to his allegations of excessive hours and maximum weight violations. The Board is the ultimate finder of fact in unemployment compensation proceedings. Peak v. Unemployment Compensation Board of Review, 509 Pa. 267, 501 A.2d 1383 (1985). Thus, issues of credibility are reserved for the Board, which may either accept or reject a witness' testimony whether or not it is corroborated by other evidence of record. Chamoun v. Unemployment Compensation Board of Review, 542 A.2d 207 (Pa. Cmwlth. 1988). The Board's findings of fact are conclusive upon review provided that the record, when taken as a whole, contains substantial evidence to support them. Taylor v. Unemployment Compensation Board of Review, 474 Pa. 351, 378 A.2d 829 (1977). In addition, we must examine the evidence in the light most favorable to the party that prevailed before the Board and give that party the benefit of all inferences that can logically and reasonably be drawn therefrom. Id. Because the Board's findings concerning Claimant's reasons for leaving his employment are supported by substantial evidence, we conclude that Claimant's reliance on Fleeger does not support his assertion that he presented sufficient evidence to establish a necessitous and compelling reason to quit.
Claimant also maintains that the Board erred by failing to make findings as to whether violations of federal safety regulations actually occurred. Claimant contends that such findings are necessary in order to determine whether Claimant established a necessitous and compelling reason to leave his employment. In support of his argument, Claimant again relies on our decision in Fleeger. However, in Fleeger the Board found that the employee's testimony "demonstrates a reasonable attempt on his part to effectuate the [e]mployer's compliance with the federal safety regulations; and, therefore, if violations were occurring, his voluntary quit was consistent with ordinary common sense and prudence." Id. at 268. Because the Board specifically found in this case that Claimant did not similarly bring his concerns to Employer's attention, and instead, found that Claimant quit because he was unhappy with his assignment to New Jersey, his reliance on Fleeger is misplaced.
Accordingly, we affirm.
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 30th day of August, 2012, the order of the Unemployment Compensation Board of Review, dated January 23, 2012, is affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge