Summary
recognizing that Board's finding of one reason for claimant's decision to quit "necessarily excludes a finding that he quit for reasons."
Summary of this case from Davis v. Unemployment Comp. Bd. of ReviewOpinion
Argued April 4, 1977
May 6, 1977.
Unemployment compensation — Voluntary termination — Burden of proof — Cause of necessitous and compelling nature — Unemployment Compensation Law, Act 1936, December 5, P.L. (1937) 2897 — Scope of appellate review — Inconsistent findings — Capricious disregard of competent evidence — Inferences — Credibility — Weight — Words and phrases — Hearsay — Adequacy of findings — Request for reconsideration.
1. An employe voluntarily terminating his employment is ineligible for benefits under the Unemployment Compensation Law, Act 1936, December 5, P.L. (1937) 2897, unless he proves that such termination was for a cause of a necessitous and compelling nature. [121]
2. In an unemployment compensation case where the decision below was against the party with the burden of proof, review by the Commonwealth Court of Pennsylvania is to determine whether the findings of fact were inconsistent or competent evidence was capriciously disregarded, giving to the party prevailing below the benefit of all reasonable inferences and leaving questions of credibility and evidentiary weight to the fact-finder. [121]
3. Hearsay, which is an out of court statement offered to prove the truth of the matter asserted, can support findings of the Unemployment Compensation Board of Review where unobjected to and corroborated by other testimony. [122]
4. Findings of fact in an unemployment compensation case need not address all issues raised if the findings made require the result reached and necessarily preclude findings supportive of a contrary theory. [122-3]
5. The Unemployment Compensation Board of Review does not abuse its discretion in granting a timely request for reconsideration of a decision and the taking of additional evidence upon a showing that the employer had no notice of the original hearing until after it was conducted. [123-4]
Argued April 4, 1977, before Judges CRUMLISH, JR., MENCER and ROGERS, sitting as a panel of three.
Appeal, No. 505 C.D. 1976, from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of David E. Baird, No. B-126599-C.
Application to Bureau of Employment Security for unemployment compensation benefits. Application denied. Applicant appealed to the Unemployment Compensation Board of Review. Referee's denial reversed. Benefits awarded. Request for reconsideration granted. Benefits denied. Applicant appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
Leonard Rubin, for appellant.
George O. Phillips, Assistant Attorney General, with him Sandra S. Christianson, Assistant Attorney General, Sydney Reuben, Assistant Attorney General, and Robert P. Kane, Attorney General, for appellee.
David E. Baird filed an application for unemployment compensation benefits which was denied by the Bureau of Employment Security pursuant to Section 402(b)(1) of the Unemployment Compensation Law (Law), which renders persons who voluntarily quit their jobs ineligible for benefits. A referee affirmed the Bureau after a hearing at which Baird alone appeared and was the sole witness. Baird appealed the referee's decision to the Unemployment Compensation Board of Review (Board) which, without taking additional testimony, reversed the referee and awarded benefits.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P. S. § 802(b)(1).
The employer then requested reconsideration of the Board's decision. The Board thereupon vacated its order and ordered a further hearing. Both Baird and a representative of his employer, Fogel Refrigeration Company, appeared.
At both hearings Baird testified that he quit his job as a refrigerator mechanic for two reasons: first, because his foreman constantly used offensive profanity; and second, because he was assigned additional duties without increased pay. At the first hearing Baird said that the chief shop steward told him "Dave, I don't know how anybody can stand his foul mouth," and that Bessie Bowden, an employe for over 20 years, told him that she was tempted to quit her employment because of the foreman's language. At the second hearing the employer's witness denied that the steward used foul or abusive language and offered into evidence without objection writings by the steward and Ms. Bowden contradicting Baird's testimony.
Baird said he was told to perform more work but that his suggestion that his salary be increased was refused. The employer's representative testified that the duties of which Baird complained were included in the job description of position, that they were reasonable and that Baird's union had not supported his complaint about the work.
The additional work given to appellant was the soldering of section lines on freezer cases. Appellant was hired as a Refrigerator Mechanic — Second Class, who, by the terms of the union contract:
Must know how to operate charger. One who is able to connect tubing to refrigerator unit; must know how to check for leaks; must know how to wire controls and time clocks; read prints under supervision of foreman; be able to solder. Must know how to set controls and also rework refrigerator. (Emphasis added.)
After the second hearing, the Board made the following somewhat meager findings of fact and conclusion of law:
Findings of Fact:
1. The claimant was last employed by Fogel Refrigerator Company, Philadelphia, Pennsylvania, as a refrigerator mechanic for six years at $130.40 per week, and his last day of work was October 9, 1974.
2. On October 9, 1974 claimant requested an increase in pay.
3. On October 19, 1974 when his request was refused claimant voluntarily terminated his employment.
Conclusion of Law: The claimant must be disqualified from receiving unemployment compensation benefits under the provisions of Section 402(b)(1) of the Law. (Emphasis in original.)
One who voluntarily terminates his employment has the burden of proving that his quitting was for cause of a necessitous and compelling nature in order to qualify for benefits under the Unemployment Compensation Law. Pfafman v. Unemployment Compensation Board of Review, 7 Pa. Commw. 197, 300 A.2d 295 (1973). In an appeal from a decision of the Board which is against the party with the burden of proof, this Court's scope of review is to determine whether the Board's findings are consistent with each other and with the conclusions and order of the Board and whether they can be sustained without capricious disregard of competent evidence. Zysk v. Unemployment Compensation Board of Review, 12 Pa. Commw. 409, 316 A.2d 663 (1974). See also Taylor v. Unemployment Compensation Board of Review, 19 Pa. Commw. 391, 338 A.2d 702 (1975); Crumbling v. Unemployment Compensation Board of Review, 14 Pa. Commw. 546, 322 A.2d 746 (1974). Furthermore, "[t]he party prevailing below is entitled to all favorable inferences reasonably deductible from the evidence. Questions of credibility and weight to be given the evidence, of course, remain the exclusive province of the Board, and this Court will not disturb these determinations on appeal." Taylor, supra, at 395, 338 A.2d at 704.
Baird says that the Board capriciously disregarded competent evidence in finding and concluding as it did. We disagree. On the issues of reasonableness of the assignment of additional duties without greater pay and the alleged profanity of the foreman, the Board simply believed the employer's evidence in preference to Baird's. This was the Board's prerogative.
Baird says that all of the employer's evidence was uncorroborated hearsay which, although not objected to, will not support the Board's findings and conclusion. Walker v. Unemployment Compensation Board of Review, 27 Pa. Commw. 522, 367 A.2d 366 (1976). Again we disagree. Hearsay evidence is an out-of-court statement offered for the purpose of proving the truth of the matter asserted therein. Carney v. Pennsylvania Railroad Co., 428 Pa. 489, 240 A.2d 71 (1968); See also 6 Wigmore, Evidence § 1746 (3d ed. 1940). The employer's representative's testimony concerning the additional duties given to Baird was based on his own knowledge of these matters, not what he heard from others and was not hearsay. His testimony concerning his personal observation of the foreman's speech habits is likewise not hearsay. The signed statements of the chief steward and Bessie Bowden, though hearsay, were not objected to, were corroborated by other testimony, and therefore provided support for the Board's findings. Walker, supra.
Baird next says that the Board's finding that appellant's voluntary departure from work was due to his dissatisfaction with pay is inadequate because the Board failed to make findings with respect to the reasons he gave for his quitting. The Board's finding that Baird's admitted voluntary quit was because his employer refused him a requested increase in pay as the employer's evidence tended to show, necessarily excludes a finding that he quit for reasons he assigned. "[F]indings need not always address themselves to all of the allegations and defenses raised by a claimant . . . ." Unemployment Compensation Board of Review v. Walton, 21 Pa. Commw. 47, 50, 343 A.2d 70, 72 (1975). (Emphasis supplied.)
Appellant finally says that the Board committed reversible error in vacating its first decision in his favor and granting the employer's request for reconsideration. The Board's rules at 34 Pa. Code § 101.111 provide:
(a) Within ten days after the issuance of the decision of the Board, as may be determined by the provisions of § 101.102 of this Title (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.
(b) Such requests will be granted only for good cause in the interest of justice without prejudice to any party. The parties shall 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.
The employer's request for reconsideration was made in a timely fashion and stated that the employer did not receive notice of the referee's hearing until the day after it was conducted. The Board apparently concluded that this was good cause for vacating its first decision and ordering the additional hearing. This was not an abuse of its discretion.
Accordingly, we enter the following
ORDER
AND NOW, this 6th day of May, 1977, it is ordered that the decision of the Unemployment Compensation Board of Review be and it is affirmed and that the appeal of David E. Baird be and it is hereby dismissed.