Opinion
No. 1815 C.D. 2014
07-10-2015
Anthony E. Dombrowski, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE COLINS
Anthony E. Dombrowski (Claimant) petitions for review of the September 5, 2014 order of the Unemployment Compensation Board of Review (Board) denying Claimant unemployment compensation benefits. The Board concluded that Claimant voluntarily left his employment as a full-time foreman with Vogt Finishes (Employer) without a necessitous and compelling reason and was therefore disqualified from receiving benefits under Section 402(b) of the Unemployment Compensation Law (Law). We affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(b). Section 402(b) of the Law provides, in relevant part, that an employee shall be ineligible for compensation for any week in which his or her unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature.
After being laid off from his employment due to lack of work, Claimant filed a claim for unemployment compensation effective September 8, 2013 and began to receive benefits, establishing a weekly benefit amount of $573 and a partial benefit credit of $172. (Record Item (R. Item) 1, Claim Record; R. Item 10, Referee's Decision/Order, Findings of Fact (F.F.) ¶¶ 2, 8.) Beginning in October 2013, Employer began contacting Claimant to return to work. (R. Item 10, F.F. ¶ 3.) On or about November 20, 2013, Employer contacted Claimant by letter and telephone, notifying Claimant that they needed him to return to work. (Id., F.F. ¶ 5.) There was no further communication between Employer and Claimant until February 4, 2014, when Employer notified Claimant by letter that he was discharged from his employment for failure to return to work after he was notified that work was available. (Id., F.F. ¶ 7.) Also by letter dated February 4, 2014, Employer notified the Erie Unemployment Compensation Service Center (Center) that it had notified Claimant, by letter and phone messages, that work was available and, after Claimant failed to respond and continued to collect benefits, that it had terminated Claimant's employment; Employer further requested relief from charges and reimbursement of monies paid Claimant since November 21, 2013. (R. Item 2, Employer Separation Information.)
Employer sent Claimant a letter dated November 21, 2013, indicating that there was work available for Claimant and requesting that Claimant refrain from any further filing for unemployment benefits due to lack of work. (R. Item 2, Employer Separation Information.)
On February 13, 2014, the Center issued three determinations: (1) denying benefits to Claimant under Section 402(b) of the Law, 43 P.S. § 802(b); (2) establishing a $6,756 fault overpayment under Section 804(a) of the Law, 43 P.S. § 874(a); and (3) imposing fourteen penalty weeks under Section 801(b) of the Law, 43 P.S. § 871(b). (R. Item 5, Notices of Determination.) Claimant filed a timely appeal to a referee and on March 25, 2014 a hearing was held at which Claimant, with counsel, testified together with three witnesses for Employer, and one witness for the Pennsylvania Department of Labor & Industry (Department). (R. Item 9, Transcript of Testimony (H.T.).) On March 27, 2014, the referee issued a decision and order that affirmed the Center's determinations, but reclassified the overpayment as nonfault under Section 804(b) of the Law, 43 P.S. § 874(b), and cancelled the penalty weeks. (R. Item 10, Referee's Decision/Order.) The referee made findings of fact that include the following:
The referee stated:
Here, as [Claimant] has been determined to be ineligible for benefits under Section 402(b), the benefits received for claim weeks ending November 23, 2013 through February 8, 2014 have been overpaid. However, the Referee finds reasonable [Claimant's] failure to report the separation, as there was no definitive separation in November 2013. [Employer] testified credibly that they advised [Claimant] they could "live without him" if he was unable to return to work at that time. Therefore, it is reasonable that [Claimant] may not have realized he was separating from the employment and continued to file for and collect for unemployment compensation benefits. As such, the Referee finds the nonfault provisions of the law appropriate to govern the recoupment of those benefits...[I]n this case, there are to be no penalty weeks imposed.(R. Item 10, Referee's Decision/Order, Reasoning.)
1. [Claimant] was employed with [Employer] as a foreman, full-time, at a final rate of pay of $14 per hour, from March 2012 until on or about August 30, 2013, his last day of work.
2. Between August 30, 2013 and October or November 2013, [Claimant] was laid off from the employment due to lack of work.
3. Beginning in October 2013, [Employer] began to contacting [Claimant] to return to work.
4. Each time [Employer] contacted [Claimant], [Claimant] advised [Employer] he was unable to return to work due to a back issue.(R. Item 10, Referee's Decision/Order, F.F. ¶¶1-6.) The referee found that while Claimant's separation from employment was initially due to lack of work, for the claim week at issue in this appeal ending November 23, 2013, the separation from employment was clearly initiated by Claimant's failure to return to work upon Employer's request and therefore was of a voluntary nature. (Id., Reasoning.) The referee therefore determined Claimant's eligibility pursuant to Section 402(b) of the Law, and stated:
5. On or about November 20, 2013, [Employer] contacted [Claimant], both by letter and telephone, advising him that they needed him to return to work.
6. At that time, [Claimant] again stated that he was not ready to return to work.
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Here, while [Claimant] had advised [Employer] at the time that he could not return to work due to back problems, it was not established that [Claimant's] back problems were of such severity to justify the voluntary separation from employment. Therefore, [Claimant] has failed to meet his burden and benefits are denied in accordance with the provisions of Section 402(b) of the [Law].(Id.) Claimant appealed to the Board, and the Board affirmed the referee, stating:
On appeal, [Claimant] presents evidence absent from the record before the referee. The [Board] may not consider
extra-record evidence and avoided doing so here. The Board, after considering the entire record in this matter, concludes that the referee's decision was proper under the Pennsylvania Unemployment Compensation Law. Therefore, the Board adopts and incorporates the referee's findings and conclusions. Additionally, [Claimant's] involuntary layoff became a voluntary separation when he refused to return to work.(R. Item 13, Board's Order) (footnote supplied.) Claimant appealed to this Court for review.
The evidence to which the Board refers, also submitted to this Court, consists of phone records for the period from November 25, 2013 through February 8, 2014, and were offered by Claimant to prove that no calls were made to him by Employer. However, the records relate to a period of time after Employer notified Claimant by letter that work was available to him, and during which Employer acknowledged, and the referee found, that there was no contact with Claimant.
In an unemployment compensation appeal, this Court's scope of review is limited to determining whether an error of law was committed, whether constitutional rights were violated, or whether necessary findings of facts are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704; Diehl v. Unemployment Compensation Board of Review (ESAB Group, Inc.), 57 A.3d 1209, 1216 (Pa. 2012).
Where the termination of employment is voluntary, a claimant has the burden to demonstrate that it was for a necessitous and compelling reason or the claimant will be ineligible for unemployment compensation; a claimant can meet this burden by demonstrating that the circumstances produced both real and substantial pressure to leave employment and that a reasonable person would have been compelled to act in the same manner under the same circumstances. Taylor v. Unemployment Compensation Board of Review, 378 A.2d 829, 833 (Pa. 1977); Beachem v. Unemployment Compensation Board of Review, 760 A.2d 68, 71 (Pa. Cmwlth. 2000). Whether a claimant has a cause of a necessitous and compelling nature to voluntarily leave employment is a question of law subject to this Court's plenary review. Pennsylvania Gaming Control Board v. Unemployment Compensation Board of Review, 47 A.3d 1262, 1265 (Pa. Cmwlth. 2012); Sturpe v. Unemployment Compensation Board of Review, 823 A.2d 239, 242 (Pa. Cmwlth. 2003).
Before this Court, Claimant challenges the findings of fact with regard to Employer's attempts to contact Claimant by telephone; Claimant asserts that after he received the letter from Employer notifying him that work was available, he called and spoke to his field supervisor, who was Employer's owner's son and a witness at the hearing (Field Supervisor). (R. Item 9, H.T. at 9-10.) At the hearing, Claimant testified that the Field Supervisor did not tell him work was available but rather told him that there would be no work until after the holiday season. (R. Item 9, H.T. at 11.) Claimant further testified that he never intended to quit his job and if he had been asked to return to work, he would have done so. (Id., H.T. at 11, 14.)
Employer presented evidence of calls made both to Claimant's home phone and to his cell phone on October 7, 2013, which the Field Supervisor testified were made to advise Claimant that there would soon be work available. (R. Item 9, H.T. at 16 and Exhibit E1.) The Field Supervisor testified that after his initial call to Claimant, he made additional calls about once a week, to alert Claimant that he was needed back at work; however, the Field Supervisor stated that Claimant expressed to him that he had issues with his back and did not seem willing to come back to work. (R. Item 9, H.T. at 17.) The Field Supervisor testified that he last spoke with Claimant on or about November 18, 2013, and again told him that he was needed back at work. (Id., H.T. at 18-19, 24.) He further testified that he told Claimant that if back problems were preventing him from coming to work, Claimant needed to provide Employer notification and proof of such a health issue. (Id., H.T. at 21.) The Field Supervisor testified that Claimant stopped returning his phone calls, and when Claimant failed to return a final call he made to him on November 20, 2013, it was determined that Employer would send the November 21, 2013 letter regarding the availability of work; the Field Supervisor stated that he had no contact with Claimant after Employer sent Claimant the November 21, 2013 letter. (Id., H.T. at 20-21, 24.) Another employee who had been called back to work at the same time testified that Claimant told him, with regard to coming back to work, that Claimant "was done, he didn't want to, he did not want to come back to work. He was just tired of stuff going on." (Id., H.T. at 32.) Claimant denied that he told his fellow employee that he did not intend to return to work, and testified that he had been ready to come back, that he did not have ongoing issues from previous back surgery, and that he had no restrictions from a physician with regard to being able to work. (Id., H.T. at 37-38.)
In unemployment compensation matters, the board is the ultimate finder of fact and is empowered to resolve conflicts in the evidence and to determine credibility of witnesses. Kelly v. Unemployment Compensation Board of Review, 776 A.2d 331, 336 (Pa. Cmwlth. 2001). Findings made by the Board are conclusive and binding on appeal if the record, examined as a whole, contains substantial evidence to support those findings, regardless of whether there is evidence that could support a different conclusion. Id. Here, substantial evidence supports the Board's determination that Employer notified Claimant that work was available, that Claimant voluntarily elected not to return to work and failed to provide a necessitous and compelling reason for his failure to do so.
Before this Court Claimant also argues, for the first time, that Employer failed to notify the Department of his refusal of an offer of work, as required by Section 402(a) of the Law, 43 P.S. § 802(a). In its Notice of Determination, the Center noted that due to a conflict as to whether Claimant voluntarily left his employment or was separated by Employer due to willful misconduct, it had considered Claimant's eligibility under both Sections 402(b) and 402(e) of the Law, determined that Claimant initiated the separation, and therefore ruled under Section 402(b). (R. Item 5, Notice of Determination.) The Center then discussed the burden borne by a claimant in situations where he or she voluntarily leaves employment, and concluded that there was insufficient information to indicate whether Claimant had a necessitous and compelling reason to have done so. (Id.) Claimant did not raise Section 402(a) of the Law at the referee's hearing or on appeal to the Board, and is precluded from doing so now. Wing v. Unemployment Compensation Board of Review, 436 A.2d 179 (Pa. 1981); Oaster v. Unemployment Compensation Board of Review, 705 A.2d 507, 508 n.1 (Pa. Cmwlth. 1998). Nevertheless, we find that here, where Claimant was contacted by Employer while on a temporary layoff, the Board was correct in determining that the involuntary layoff became a voluntary separation when Claimant refused to return to work, and in determining Claimant's ineligibility for benefits under Section 402(b).
Section 402(a) of the Law provides in relevant part that an employee shall be ineligible for unemployment compensation for any week in which he fails to accept suitable work when offered to him by an employer, provided that such employer notifies the employment office within seven (7) days after the offer is made. 43 P.S. § 802(a). --------
Accordingly, the order of the Board is affirmed.
/s/ _________
JAMES GARDNER COLINS, Senior Judge ORDER
AND NOW, this 10th day of July, 2015, the Order of the Unemployment Compensation Board of Review in the above-captioned matter is hereby AFFIRMED.
/s/ _________
JAMES GARDNER COLINS, Senior Judge