Opinion
Argued February 8, 1980
March 14, 1980.
Unemployment compensation — Voluntary termination — Cause of a necessitous and compelling nature — Unemployment Compensation Law, Act 1936, December 5, P.L. (1937) 2897 — Violation of child labor laws — Credibility.
1. An employe voluntarily terminating employment is ineligible for benefits under the Unemployment Compensation Law, Act 1936, December 5, P.L. (1937), unless he proves that such termination was for a cause of a necessitous and compelling nature. [153]
2. An employer is properly found not to have compelled an employe supervisor to violate child labor laws justifying his voluntary termination without jeopardizing his eligibility for unemployment compensation benefits, when the employer denied a request to close his premises earlier so that high school students working would not work past legal time limits but instructed the supervisor to hire older workers who could legally work later hours. [154-5]
3. In an unemployment compensation case questions of credibility are for the fact finder, who can disbelieve even uncontradicted testimony. [155]
Argued February 8, 1980, before Judges WILKINSON, JR., MENCER and CRAIG, sitting as a panel of three.
Appeal, No. 2330 C.D. 1978, from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Godfrey J. Kroepil, Jr., B-163322.
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 R. Mazero, Jr., with him Patrick H. Mahady of Mahady Mahady, for petitioner.
Gary Marini, Assistant Attorney General, for respondent.
Phillip J. Binotto, Jr., of Greenlee, Richman, Derrico Posa, for intervening respondent.
This is a petition to review the affirmance by the Unemployment Compensation Board of Review of a referee's denial of unemployment compensation benefits to claimant, Mr. Kroepil, under Section 402 (b)(1) of the Unemployment Compensation Law (Act), Act of December 5, 1936, Second Ex. Sess. P.L. (1937) 2897, as amended, 43 P. S. § 802(b)(1), on the basis that he had quit his job as a restaurant manager without cause of a necessitous and compelling nature.
Claimant had been employed as the manager of a restaurant in New Stanton, Pennsylvania which first opened for business May 9, 1978, with operating hours from 7:00 a.m. to midnight. On May 11, and 24, claimant reported to his superiors that high school students employed by the restaurant, under 18 years of age, had been working as late as 2, 3 and 4:00 a.m., to clean up after closing. Claimant proposed the immediate adoption of earlier closing hours so that the working hours of such younger employees could be brought into compliance with child labor law requirements that such employees work not later than 11:00 p.m. on evenings preceding school days and not after midnight on other evenings.
Section 4 of the Child Labor Law, Act of May 13, 1915, P.L. 286, as amended, 43 P. S. § 46.
Claimant's superiors instructed him to obtain older personnel not subject to such limitations and declined to change the closing hours. Claimant, who contends that he was unable to find older workers, voluntarily quit on May 26, 1978.
Claimant, in his interview with the Bureau of Employment Security (now office of Employment Security) gave his concern about the child labor laws as one of his reasons for quitting but also expressed his dissatisfaction with his superiors' actions in several other respects.
Certainly the presence of reasons other than the alleged child labor law violations would not destroy the efficacy of such law violation as a basis for quitting. We have held that an employe has sufficient cause to terminate employment when the employer requires him to pursue unlawful activities. Zinman v. Unemployment Compensation Board of Review, 8 Pa. Commw. 649, 305 A.2d 380 (1973).
However, the employer's officials apparently did not insist upon an illegal situation; they authorized replacement of the young employees.
Examination of the record and referee's decision shows that the referee, after much questioning on the point, simply did not accept claimant's protestations that he could not find older workers or take other steps to avoid the late working hours.
The referee, not required to believe even uncontradicted testimony, Edelman v. Unemployment Compensation Board of Review, 10 Pa. Commw. 275, 310 A.2d 707 (1973), concluded that claimant did not sustain his burden of establishing cause for quitting. Stalc v. Unemployment Compensation Board of Review, 13 Pa. Commw. 131, 318 A.2d 398 (1974).
Because the alleged impossibility of claimant being able, as manager, to remedy the problem is not free from doubt, we cannot conclude that the referee capriciously disregarded evidence. Hammerstone v. Unemployment Compensation Board of Review, 32 Pa. Commw. 256, 378 A.2d 1040 (1977).
We therefore affirm the decision.
ORDER
AND NOW, this 14th day of March, 1980, the order of the Unemployment Compensation Board of Review No. B-163322 dated August 25, 1978 is affirmed.
President Judge BOWMAN did not participate in the decision in this case.