Summary
In Krieger v. Unemployment Compensation Board of Review, 415 A.2d 160 (Pa. Cmwlth. 1980), this Court has stated that "[j]eopardy to an employee's health or safety, dangerously unsafe equipment, or violation of the law all may constitute necessitous and compelling reasons for voluntary termination."
Summary of this case from Flanigan v. Unemployment Comp. Bd. of ReviewOpinion
Argued May 7, 1980
June 9, 1980.
Unemployment compensation — Voluntary termination — Cause of a necessitous and compelling nature — Unemployment Compensation Law, Act 1936, December 5, P.L. (1937) 2897 — Reprimand — Danger to health and safety — Violation of law — Credibility.
1. An employe voluntarily terminating 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. [104]
2. Resentment of a reprimand which was not unjust and did not involve abusive conduct or profane language by the supervisor is not a necessitous and compelling cause for voluntarily terminating employment so as to permit such employe to receive unemployment compensation benefits. [104]
3. To require an employe to perform tasks which were in violation of law or hazardous to the employe's health or safety may constitute a necessitous and compelling reason for the voluntary termination of employment by the employe permitting him to recover unemployment compensation benefits if the employe sustains his burden of proving such assertion. [105]
4. In an unemployment compensation case questions of credibility and evidentiary weight are for the Unemployment Compensation Board of Review, and findings of the Board supported by substantial evidence will not be disturbed by a reviewing court. [106]
Argued May 7, 1980, before Judges WILKINSON, JR., CRAIG and WILLIAMS, JR., sitting as a panel of three.
Appeal, No. 1299 C.D. 1979, from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Bruce T. Krieger, No. B-172552.
Application to the Bureau of Employment Security for unemployment compensation benefits. Application denied. Applicant appealed to the Unemployment Compensation Board of Review. Denial affirmed. Applicant appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
John D. Gibson, with him Edward R. Schellhammer and Stephen E. DiNovis, for petitioner.
Elsa D. Newman-Silverstine, Assistant Attorney General, with her Richard Wagner, Chief Counsel and Edward G. Biester, Jr., Attorney General, for respondent.
Claimant Bruce Krieger, last employed as a truck driver by W. C. McQuaide, Inc., appeals from the Unemployment Compensation Board of Review's order affirming the referee's determination that he voluntarily terminated his employment without necessitous and compelling cause and was therefore ineligible for benefits under Section 402(b)(1) of the Unemployment Compensation Law.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P. S. § 802(b)(1).
Claimant testified that, on March 9, 1979, after returning from a scheduled vacation, he notified his employer that he was terminating his employment as of March 16, 1979. Claimant's alleged cause for termination was his claim that he was "belittled" by the employer's supervisor for failing to call in by radio or otherwise at the end of the day, as employer's policy required. The missed communication had resulted in the employer losing a pickup as an item of additional business.
The compensation authorities, terming the supervisor's action as a reprimand, found that it was not excessive in nature and did not constitute cause of a compelling nature for termination. We agree.
Resentment of a reprimand, absent unjust accusations, abusive conduct or profane language, does not constitute necessitous and compelling reason for termination. Rooney v. Unemployment Compensation Board of Review, 33 Pa. Commw. 76, 380 A.2d 957 (1977); Unemployment Compensation Board of Review v. Ruffel, 18 Pa. Commw. 512, 336 A.2d 670 (1975). Claimant testified as to the exact words of the dispatcher's reprimand; none of the elements which are required to raise a reprimand to the level of necessitous and compelling cause justifying a termination were present in claimant's recital.
Claimant asserts here on appeal that the board's findings were based solely on hearsay. However, claimant's own testimony substantiates the fact that, when his radio calls went unanswered, he failed, as required by employer's policy, to call in by telephone.
Further, claimant offered several other conditions of his employment as compelling cause for his termination, by testifying that he was required to log up to eighty hours of work per week, which was injurious to his health and safety, and was required to haul illegal overloads. Jeopardy to an employee's health or safety, dangerously unsafe equipment, or violation of the law all may constitute necessitous and compelling reasons for voluntary termination. See Stormer v. Unemployment Compensation Board of Review, 32 Pa. Commw. 220, 378 A.2d 1037 (1977).
However, claimant's own testimony also indicated that, at his request, the overload was reduced, and the employer, offering claimant's time sheets into evidence, negated claimant's contention of an eighty-hour work week. Neither did claimant introduce any medical evidence to support his claim that his health was affected by his work.
Although claimant gave notice that he would work until March 16, 1979, the record indicates that claimant never worked after returning from his vacation. Claimant testified that he called in on March 11, March 12 and March 13 reporting off work because his wife had given birth on March 10, 1979. Claimant asserts that this domestic event also constituted necessitous and compelling cause for his termination. However, claimant testified that he gave notice of his termination on March 9, 1979, before the baby was born.
Questions of credibility and the weight to be given the evidence are for the board, and our review of the record in this case indicates that all necessary findings are supported by substantial evidence.
Therefore, we affirm the order of the board.
ORDER
AND NOW, this 9th day of June, 1980, the order of the Unemployment Compensation Board of Review (B-172552) dated May 24, 1979, is affirmed.