Opinion
No. 736 C.D. 2014
12-15-2014
Edward L. Krause, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE LEAVITT
Edward L. Krause (Claimant), pro se, petitions for review of an order of the Unemployment Compensation Board of Review (Board) denying his application for benefits. In doing so, the Board affirmed the Referee's determination that Claimant had voluntarily terminated his employment without a necessitous and compelling reason, making him ineligible for benefits under Section 402(b) of the Unemployment Compensation Law (Law). Claimant argues that he had just cause to quit his job because he was promised overtime but did not receive it; there were health and safety issues at the workplace; his supervisor threatened to fire him; and his employer was on the verge of shutting down. Concluding that Claimant did not take steps to preserve his employment, we affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(b). It provides that an employee is ineligible for compensation for any week "[i]n which his unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature...." 43 P.S. §802(b).
Claimant began working as a laborer for Purcell Tire and Rubber Company (Employer) on August 14, 2012, at a rate of pay of $12.05 per hour. On July 12, 2013, he quit. When Claimant applied for unemployment compensation on October 28, 2013, he reported that he quit because of "unhealthy working conditions and threats." Certified Record, Item 3, Employment Separation Questionnaire at 2 (C.R. ___). After quitting, he attempted to start his own business delivering firewood, which generated income of approximately $270 per week through October 25, 2013. At that time, he "ran out of orders for firewood." C.R., Item 3, Claimant Questionnaire at 3. The Altoona UC Service Center found Claimant ineligible for benefits because he had failed to establish that he resigned for a necessitous and compelling reason. Claimant appealed, and a hearing was held by a Referee.
At the hearing, Claimant explained his dissatisfaction with his employment. When he was hired in August 2012, Employer told him that there would be a lot of overtime work. In actuality, very little overtime was available. Further, the working conditions were hazardous. In 2012, when his arm was burned by a piece of rubber, his supervisor, Dave Martin, told him "to rub some dirt on it and get back to work." C.R., Item 10, Notes of Testimony at 4 (N.T. ___). Because the ventilation system was broken, it left "rubber dust ... everywhere." N.T. 3. When Claimant complained to Martin, he retorted "get tough." N.T. 4. In May 2013, Brian Jarvis replaced Martin as Claimant's supervisor. When Claimant again complained about the ventilation system, Jarvis responded that he was "not allowed to spend any money." N.T. 5.
When Jarvis was made a supervisor, he was replaced by an inexperienced laborer who worked at a slower pace. At Jarvis' suggestion, Claimant helped the new worker, which caused delays in getting his own work done. This prompted Jarvis to yell at Claimant for helping the new worker either too much or too little. Jarvis continuously threatened to fire both employees "if [they didn't] get moving." N.T. 4. When Claimant complained to a union steward, he was told that "the union would back [him] up." N.T. 6. However, Claimant did not believe the union was "too swift." Id. He also complained to Thomas Martin, who was "second in command below ... Jarvis." N.T. 6.
On July 8, 2013, management informed Claimant that "it was on the table to close [the] plant." N.T. 5. Because there was no work, Claimant spent July 12, 2013, scrubbing floors and cleaning the bathroom. That night, he told his wife that it looked like the place was closing and he needed to find another job. They "agreed that Friday night I wasn't going back." N.T. 5. That same night, Claimant left a phone message for Employer stating he would not be returning to work.
Claimant testified that on July 13, 2013, he telephoned some business contacts and received several orders for firewood. He then purchased equipment and started a firewood business on July 15, 2013.
Brian Hayes, Employer's president, testified. Hayes reported that in July 2013, he spoke to Claimant on several occasions and at no time did Claimant raise any complaints about his work situation. In July, Hayes informed the employees that the plant had some issues and "if we did not turn things around" then the plant would "possibly shut down." N.T. 9. One of the things Hayes worked on in July was "redesigning the floors to make the shop ... safer." Id. Hayes testified that the decision to close the plant was made "the last week of August." Id. The plant closed on September 6, 2013.
Hayes did not believe that Jarvis had threatened to fire Claimant. He explained that Jarvis was a member of the bargaining unit and had no authority to fire anyone. Hayes believed it was "very common knowledge" that Jarvis lacked such authority. N.T. 9.
The Referee concluded that Claimant did not meet his burden of proving that he left his employment for a necessitous and compelling reason. The Referee found that Claimant did not make a reasonable attempt to preserve his employment by giving Employer a chance to address his complaints. Further, Claimant's belief that the plant would close in the future is not, in itself, a compelling reason to quit. The Referee denied unemployment benefits.
Claimant appealed. The Board observed that Claimant continued working despite his unhappiness with the working conditions and did not present his concerns to Hayes when he had the opportunity. It agreed with the Referee that the possibility of an employer shutting down does not give an employee a compelling reason to leave employment while the employer still has work available. The Board denied unemployment benefits.
Claimant petitioned for this Court's review. He argues that the evidence of record established several necessitous and compelling reasons for quitting his job. As such, the Board erred in finding that he presented insufficient evidence.
Our review determines whether constitutional rights were violated, an error of law was committed or whether necessary findings of fact were supported by substantial evidence. Shrum v. Unemployment Compensation Board of Review, 690 A.2d 796, 799 n.3 (Pa. Cmwlth. 1997). Our standard of review is deferential with respect to the Board's findings of fact but our review of legal questions is plenary.
Claimant also claims that the Board erred in finding him ineligible for benefits under Section 402(b) of the Law because "43 P.S. §402" of the Law does not exist. Claimant is mistaken. "Section 402(b)" is the official cite; "43 P.S. §802(b)" is the Purdon's cite. --------
We begin with a review of the law. The claimant bears the burden of establishing that necessitous and compelling reasons existed for quitting. Empire Intimates v. Unemployment Compensation Board of Review, 655 A.2d 662, 664 (Pa. Cmwlth. 1995). A reason for quitting must be "both real and substantial, and [one] which would compel a reasonable person under the circumstances to act in the same manner." Malloy v. Unemployment Compensation Board of Review, 523 A.2d 834, 836 (Pa. Cmwlth. 1987). To meet this burden, the claimant must establish "that he acted with ordinary common sense in quitting his job, that he made a reasonable effort to preserve his employment and that he had no other real choice than to leave his employment." Id. Acting with "common sense" includes notifying the employer of the problem prior to quitting, so that the employer is given an opportunity to resolve the problem. Unclaimed Freight Company v. Unemployment Compensation Board of Review, 677 A.2d 377, 379 (Pa. Cmwlth. 1996). The Board makes the relevant findings of fact, which includes the assessment of witness credibility. Spence v. Unemployment Compensation Board of Review, 29 A.3d 117, 118 (Pa. Cmwlth. 2011).
Claimant enumerates four reasons for his position that he had a compelling reason to resign. They include a lack of promised overtime; concerns about the safety of the workplace; a difficult supervisor; and the impending demise of Employer. We consider each ad seriatim.
Claimant first asserts that when he was hired in August of 2012, Employer promised overtime work. Most weeks, however, he worked 32 hours per week. The Board counters that Claimant continued to work for Employer for 11 months despite the lack of overtime, and has never raised this issue with Employer. We agree with the Board that Claimant failed to show that the lack of overtime was a "real and substantial" reason for quitting in light of the fact that he worked 11 months without the expected overtime. Malloy, 523 A.2d at 836. More to the point, Claimant should have raised this issue with Employer and tried to preserve his employment. Unclaimed Freight Company, 677 A.2d at 379.
Second, Claimant contends that the workplace was not safe. In support, he testified that he was burned in 2012. Claimant also testified that the ventilation system did not work properly. Again, the Board counters that Claimant continued to work in spite of these conditions and did not cite these concerns to Hayes, the company president, prior to quitting.
A claimant can prove that his termination was compelling "where the job jeopardizes his health or safety or where the work which is required results in a breach of law." Fleeger v. Unemployment Compensation Board of Review, 528 A.2d 264, 267 (Pa. Cmwlth. 1987). However, in Potts v. Unemployment Compensation Board of Review, 406 A.2d 585, 586 (Pa. Cmwlth. 1979), we found that a claimant's mere expressions that he "felt working conditions were unsafe" and was "fearful" of the conditions, did not satisfy his burden of proof. A claimant must establish "by objective evidence that his working conditions were unsafe and placed the employee at risk." Green Tree School v. Unemployment Compensation Board of Review, 982 A.2d 573, 578 (Pa. Cmwlth. 2009).
Claimant provided little information about the burn, its cause and whether the burn required medical treatment. He did not explain whether it was a malfunction in equipment or worker error that caused the incident. Claimant was also imprecise about the ventilation system. He testified:
There was actually a machine in there that spread cement on tires and the ventilation system was broke when I got there and when I left it was still broke and they said that it was a man belt or something was broke on it and they weren't fixing it. And then on the other end of the plant where I also worked in the final inspection, we filled the (inaudible) asphalt on tires and (inaudible) the most rubber when they got cooked and came out, the piece of the rubber you ground off smooth to make the tire look nice and the rubber dust was everywhere in there and no ventilation.N.T. 3. Claimant did not explain whether the prevalence of rubber dust was a one-time occurrence or a daily condition of the workplace. Claimant also did not connect the broken ventilation system at one end of the plant to the lack of ventilation at the other end.
Again, Claimant continued to work for months after his burn and in spite of the poor ventilation, which undermines his position that conditions were intolerable. Unsafe conditions in the workplace are a serious concern and can provide a compelling reason to resign. However, the extent of the problems alleged by Claimant was not made clear by objective evidence. More importantly, Claimant did not complain to Hayes about them.
Third, Claimant asserts that his supervisor repeatedly threatened to fire him for not working faster and not helping the new employee to work faster. The Board counters that threatening to fire someone if they do not become more productive does not constitute a valid reason to quit.
Rizzitano v. Unemployment Compensation Board of Review, 377 A.2d 1060 (Pa. Cmwlth. 1977), is instructive. In that case, the employer told the claimant to complete his work faster or "I'll get somebody else, you know." Id. at 1061. The claimant testified that he could not meet these demands and quit before he got fired. This Court explained that threats of discharge do not justify quitting employment. One has to continue to try. As in Rizzitano, Claimant was merely threatened with the loss of his job, which did not establish cause for voluntarily terminating his position.
Claimant's fourth, and final, claim is that the plant's closing was imminent. The Board responds that because there had been no definitive decision to close the plant, Claimant resigned on the basis of speculation, which is not a compelling reason to leave employment.
On July 8, 2013, management informed the employees that the plant might close. That week inventory was removed from the plant. By the end of the week, Claimant did cleaning detail because there was no other work to do. Because he "felt the place was closing," Claimant telephoned Employer and left a message that he had resigned. N.T. 7. The next day, he began calling business contacts to find work.
It is well established that "uncertainty and speculation about the future existence of a job does not create necessitous and compelling cause" to resign employment. Department of the Navy v. Unemployment Compensation Board of Review, 650 A.2d 1138, 1140 (Pa. Cmwlth. 1994). See also Staub v. Unemployment Compensation Board of Review, 673 A.2d 434, 437 (Pa. Cmwlth. 1996) ("possibility of a future layoff was insufficient to prove necessitous and compelling cause."); Flannery v. Unemployment Compensation Board of Review, 557 A.2d 52, 54 (Pa. Cmwlth. 1989) (speculation that "lay-off was inevitable" does not establish necessitious cause to terminate employment).
Hayes stated "that if we did not turn things around" then "we were going to possibly shut down the plant." N.T. 9. This did not establish that a shutdown was imminent. According to Hayes, inventory was moved because the company was "redesigning the floors" of the building. Id. Instead of addressing his concerns to Hayes, Claimant decided to resign based on his perception of the situation.
In summary, it was Claimant's burden to establish that he "had no other real choice than to leave his employment." Malloy, 523 A.2d at 836. Simply, Claimant's decision to resign does not meet this standard principally because he did not give management the opportunity to hear and respond to his concerns.
Accordingly, we affirm the Board's order.
/s/_________
MARY HANNAH LEAVITT, Judge ORDER
AND NOW, this 15th day of December, 2014, the order of the Unemployment Compensation Board of Review, dated March 28, 2014, is hereby AFFIRMED.
/s/_________
MARY HANNAH LEAVITT, Judge