Opinion
No. 1161 C.D. 2011 No. 1162 C.D. 2011
01-11-2012
W. Craig Adams, President and W. Craig Adams, Inc., Petitioners 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 SENIOR JUDGE FRIEDMAN
W. Craig Adams, President and W. Craig Adams, Inc. (collectively, Employer) petition for review of the orders of the Unemployment Compensation Board of Review (UCBR), dated May 27, 2011, which determined that Wilson Toro (Claimant) is not ineligible for compensation under section 402(e) of the Unemployment Compensation Law (Law). We affirm.
Claimant filed two separate claims resulting in two separate UCBR orders.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(e). Section 402(e) of the Law provides that a claimant shall be ineligible for benefits for any week in which his unemployment is due to his discharge from work for willful misconduct connected with his work. 43 P.S. §802(e).
The UCBR found as follows. Claimant worked for Employer as a laborer from March 17, 2004, until December 16, 2010. In October 2010, Claimant informed his superintendent that he would be traveling to Puerto Rico for vacation over the 2010 Christmas holiday. Claimant intended to be away from December 20, 2010, until January 6, 2011, and had booked flights for those dates. Claimant had previously traveled to Puerto Rico for two weeks over the Christmas holiday and had been permitted to use his vacation time, as well as unpaid leave. (UCBR's Findings of Fact, Nos. 1-4.)
Claimant's superintendent asked how long Claimant's trip would be, and, as a joke, Claimant answered that it would be three months long. The superintendent laughed when Claimant said he would be away for three months. Claimant then asked if it would be okay to take time off, and the superintendent said that it would be okay. Claimant reported off work beginning December 17, 2010, in order to prepare for his trip. (UCBR's Findings of Fact, Nos. 5-8.)
On December 17, 2010, Claimant received a letter from Employer, which was dated the previous day. This letter provided:
It is my understanding that you are requesting an extended period of time off. As you were told by our Superintendent, Fred, you do not have enough vacation time available to take this amount of time off to go to Puerto Rico. If you take this time, you are not eligible to collect unemployment, because we have plenty of work available for you and you will be terminated.(UCBR's Findings of Fact, Nos. 9 and 10.)
After receiving this letter, Claimant called his superintendent and asked if he knew anything about the letter. The superintendent stated that he did not know anything about the letter but that perhaps Employer sent it because Claimant had asked for three months of vacation. Claimant explained that he was returning on January 6, 2011, and the superintendent told Claimant to call him the next day. Claimant did so, but the superintendent did not answer Claimant's call. (UCBR's Findings of Fact, Nos. 11-14.)
Claimant traveled to Puerto Rico on December 20, 2010, and he returned on January 6, 2011. When Claimant returned, he discovered that Employer had mailed his paycheck and written "last check" on it. On January 7, 2011, Claimant called his superintendent, who said that he was unaware of what Employer's letter said, that he would talk to Employer about Claimant's situation, and that he would return Claimant's call. The superintendent did not call Claimant after January 7, 2011. Employer discharged Claimant because Employer believed that Claimant was taking two to three months off to travel to Puerto Rico and that Claimant did not have enough vacation time to support such a prolonged absence. (UCBR's Findings of Fact, Nos. 15-19.)
Claimant filed for unemployment compensation benefits, and the local job center issued two notices of determination that Claimant was ineligible for benefits under section 402(b) of the Law because he quit without a necessitous and compelling reason. Claimant appealed, and a notice of hearing was sent to the parties, informing them of all of the issues that might be considered, including whether Claimant quit or whether Claimant was discharged for willful misconduct pursuant to section 402(e). After a hearing, the referee issued two decisions reversing the job center's determinations. The referee concluded that Claimant quit and that Claimant was eligible for benefits under section 402(b) of the Law because Claimant had attempted to maintain the employment relationship and because it was reasonable for Claimant to go to Puerto Rico since he bought his tickets in October. Employer appealed, and the UCBR affirmed the referee's decisions, as modified, to award Claimant benefits under section 402(e) of the Law. Employer's petition for review to this court followed.
Under 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. 43 P.S. §802(b).
The UCBR issued the same findings of fact and conclusions of law in both of its decisions.
Our scope of review is limited to determining whether constitutional rights were violated, whether the adjudication is in accordance with the law and whether the necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704.
On appeal, we first address Employer's assertion that the UCBR erred in failing to conclude that Claimant quit and, thus, failing to decide this case under section 402(b) of the Law. The determination of whether an employee voluntarily quit or was discharged from his employment is one of law, as supported by the record. Pennsylvania Liquor Control Board v. Unemployment Compensation Board of Review, 648 A.2d 124, 127 (Pa. Cmwlth. 1994). Here, the UCBR specifically determined that "[C]laimant did not intend to quit, but, rather, was discharged because [Employer] believed [he] was taking two to three months of time off to travel to Puerto Rico and did not have enough vacation time available for such an extended absence." (UCBR's Ops. at 3.) As found by the UCBR and supported by the record, Claimant spoke to the superintendent both before and after Claimant's trip hoping to communicate with Employer about its letter. (Findings of Fact, Nos. 11, 17; N.T., 4/4/11, at 5, 6.) Claimant also testified that he attempted to go back to work after he returned from Puerto Rico. (N.T., 4/4/11, at 6.) Claimant's testimony and documentary evidence were specifically credited by the UCBR. Moreover, the record reflects that Employer notified Claimant by letter dated December 16, 2010, that, if Claimant took "an extended period of time off[,] . . . [he would] be terminated." (Findings of Fact, No. 10; Ex. 6c.) Thus, the UCBR did not err in concluding that Employer discharged Claimant, and Employer's argument to the contrary lacks merit.
These cases were consolidated by order of this court dated July 28, 2011.
Even so, Employer does not argue that it was prejudiced by the UCBR's consideration of the matter under section 402(e), and, in any case, as previously noted, that issue was referenced as one that "may be considered" in the notice of hearing. Cf. 34 Pa. Code §101.107(b), providing that, "any issue in the case, with the approval of the parties, may be determined . . . if the speedy administration of justice, without prejudice to any party, will be substantially served thereby and are supported by the record."
We note that Claimant testified at the hearing through an interpreter.
The UCBR is the ultimate fact-finder in unemployment cases, and we will not disturb its credibility findings on appeal. Maher v. Unemployment Compensation Board of Review, 983 A.2d 1264, 1268 n.3 (Pa. Cmwlth. 2009), appeal denied, 606 Pa. 674, 996 A.2d 493 (2010).
Employer also argues that Claimant's decision to take vacation despite Employer's warning that he would be terminated if he did so amounts to willful misconduct rendering him ineligible for benefits under section 402(e). In particular, Employer asserts that Claimant knew he had only two days of vacation time; Claimant created confusion with respect to the amount of vacation time he had; Claimant failed to obtain permission for his vacation before leaving for Puerto Rico on December 20, 2010; and Claimant knew Employer would terminate him for taking this vacation. Employer therefore contends that Claimant is ineligible for benefits under section 402(e).
We note that the UCBR made no such finding. --------
"It is well established that violation of an employer's directive or absentee policy, without permission or good cause, constitutes willful misconduct." Fritzo v. Unemployment Compensation Board of Review, 429 A.2d 1215, 1219 (Pa. Cmwlth. 1981). Further, "taking an unauthorized vacation when directed not to do so constitutes willful misconduct." Lipovsky v. Unemployment Compensation Board of Review, 433 A.2d 149, 150 (Pa. Cmwlth. 1981). Here, however, the UCBR specifically resolved all of the relevant conflicting evidence in Claimant's favor. The UCBR credited Claimant's testimony and his account in the "Claimant Questionnaire" that the superintendent indicated Claimant could take his vacation and that, after receiving Employer's letter, Claimant contacted his superintendent before he left for Puerto Rico to say he would return on January 6, 2011, rather than in three months. (UCBR's Ops. at 3, 4.) The record supports the UCBR's findings that the superintendent permitted Claimant to take vacation and that Claimant did not take three months of vacation in violation of Employer's directive. Where the UCBR's findings of fact are supported by substantial evidence, as they are here, we are bound by those findings. Cundiff v. Unemployment Compensation Board of Review, 489 A.2d 948, 950 n.3 (Pa. Cmwlth. 1985). Therefore, we hold that Claimant's taking of his vacation over the 2010 Christmas holiday did not rise to the level of willful misconduct disqualifying Claimant from benefits under section 402(e).
Accordingly, we affirm.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge
ORDER
AND NOW, this 11th day of January, 2012, the orders of the Unemployment Compensation Board of Review, dated May 27, 2011, are hereby affirmed.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge