W.G. Hastings, Jr. v. UCBR ( 2022 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
William G. Hastings, Jr., :
:
Petitioner :
: No. 104 C.D. 2021
v. : Submitted: March 11, 2022
:
Unemployment Compensation :
Board of Review, :
:
Respondent :
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WOJCIK FILED: April 13, 2022
William G. Hastings, Jr. (Claimant) petitions for review of the order of
the Unemployment Compensation Board of Review (Board) affirming the decision
of a Referee that denied Claimant’s application for benefits under Section 402(b) of
the Unemployment Compensation (UC) Law (Law)1 because he resigned from his
employment without a necessitous and compelling reason. We affirm.
The relevant findings of fact made by the Board, are as follows. See
Certified Record (CR) at 138-39, 155. Claimant worked for Kravitch Machine
1
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§802(b). Section 402(b) provides, in pertinent part, that “[a]n employe shall be 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 . . . .” Id.
Company (Employer) as a full-time machine operator from January 12, 2019, to
March 20, 2020. Employer’s business involves the provision of tools to public
utility companies. On March 20, 2020, Claimant’s last day of work, Employer called
its employees into a meeting to advise them that the Governor had issued a directive
regarding the new coronavirus (COVID-19) pandemic, and that Employer was
making several inquiries about whether it was considered to be an essential service.
Claimant expressed skepticism and became upset about the uncertainties
surrounding the Governor’s directive. Employer told its employees that they could
either stay at work until more information was gathered, or they could leave and go
home, but stay close to the telephone because Employer would call with information
about whether it would have to shut down its operations. Ultimately, Employer was
designated as an essential service, and it was able to remain open. After Claimant
expressed continuing frustration, Employer told him that he could leave until the
matter was further settled. Claimant went home and did not return to work.
Although Claimant has several medical conditions, Claimant did not confer with his
physician to see whether he should continue working during the pandemic directive.
Claimant also did not ask Employer for other work or an accommodation. Because
Claimant did not return to work, and did not contact Employer any further, Employer
sent Claimant a letter dated March 25, 2020, advising Claimant that he was no longer
employed.
On March 25, 2020, Claimant submitted an online application for
benefits. CR at 15-22. On July 22, 2020, the Department of Labor and Industry’s
Office of Unemployment Compensation Benefits issued a Notice of Determination
(Determination) in which it found that Claimant was not ineligible for benefits under
Section 402(b) of the Law because “[C]laimant quit for personal reasons . . . in order
2
to self[-]quarantine with his family due to [COVID]-19. [He] has pre[]existing
health conditions that make him at high risk for contracting the virus.” Id. at 37. On
August 3, 2020, Employer appealed the Determination to a Referee alleging, inter
alia, that at the time of separation, Claimant did not notify Employer that he quit;
Claimant did not discuss the reasons for leaving his employment; Claimant made no
effort to resolve any issues with Employer prior to leaving; and Claimant did not
inform Employer of any preexisting medical conditions. Id. at 44-53.
Before the Referee, Employer’s owner, Nick Kravitch (Owner)
testified, in pertinent part:
[O]n July 17[, 2020,] I received an Employer
questionnaire, and one of the things that was mentioned in
the course was Number 8. It says, prior to separation, did
[]Claimant discuss the situation with you or make any
other attempts to resolve the situation which caused him []
to voluntarily quit or t[ake] a leave of absence, and the
answer is no. Prior to him leaving, he didn’t even discuss
anything with me. . . . This meeting [on January 8, 2020,]
was held at approximately 9 a.m. with [Claimant] in
attendance, with [Owner], HR/personnel Margo Kravitch
[Owner’s Wife], [and] plant supervisor William
Hildebrand[.] [Claimant] was reminded that he’s missed
21 days during the year of 2019. . . . [Claimant] was given
notice that any further absentee days would require a
medical excuse. . . . During this meeting then, we gave
him every opportunity to supply us with medical
documents -- documents from doctors. . . . I need a
document like that. I have no document. I did not have
any medical doctors, all the 14 months he was there --
when he left on March 20th, I did not have any
documents. . . . And in the last, you know, six weeks
before he left, we were talking about the coronavirus at
different times. Nowhere in that period of time did he say,
hey, I got this condition and if I get the coronavirus I’m
going to die or something like that. He never mentioned
that.
3
***
Prior to the separation, []Claimant did not discuss the
situation with me or make any other attempts to resolve
the situation which caused him to voluntarily quit as
indicated in the Employer Questionnaire. . . . The PA
Department of Health has given us a strategy to work with.
We’ve developed our own strategy, and it’s obviously
worked because we’ve had four months of -- or five or six
months or whatever, we haven’t had anybody with the
coronavirus. Okay. We had followed certain strategies
that allowed us to work safely throughout this time without
anybody getting the virus. Okay. Now, had he come to
me -- now, the thing is, I -- and I’m saying it again and
again, and my wife mentioned it, he never c[a]me to me.
If he comes to me -- and I’m a reasonable man. We have
20,000 square f[ee]t. We have two 5,000[-]square-foot
buildings, two 3,000[-]square-foot buildings, one [2,500]
square-foot building on 100 acres of rural Pennsylvania
three miles from []his house. So I could have put him in
his own building if we had to. I could give him his own
building. . . . He could have also worked outside. He
could have worked a different shift. If he was really
concerned about it, I would say, hey, you know, you could
work 6:00 to 2:00 or 3:00 or whatever. And he’s a good
worker, and I would trust [him] that way. Okay? Now, he
could also work from home. . . . So there w[ere] many
alternatives to explore. So when they said, whenever the
examiner said []Claimant has no alternatives to exhaust,
that’s totally ridiculous. In conclusion, [Claimant] left on
March 20th of his own free will. He was not told or
encouraged to leave. A meeting at 10:30 a.m. with all the
employees was called to discuss that we are an essential
business. [Claimant] became immediately enraged and
badgered and bucked me during this meeting in front of all
the employees. During this meeting, [Claimant] clearly
stat[ed] he’s not concerned for his health prior to leaving
the meeting. [Claimant] accused me of trying to kill
[another elderly employee,] Steve. [Claimant] left
company-issued tools that he was required to leave prior
to quitting without being asked to leave the tools.
[Claimant] left without discussing any health issues or
trying to resolve any of his health concerns.
4
CR 123-24, 126, 131-32.
Likewise, Owner’s Wife testified before the Referee, in relevant part,
as follows:
[]Claimant had been bullying [Owner] during this initial
morning meeting. As []Claimant walked away from this
meeting with another employee in my direction, it
appeared to me that he was attempting to badger and
coerce another employee to go home along with him. In
order to d[iffuse] the situation, since []Claimant only lived
three miles away, I said to [him] if he felt uncomfortable
maybe he should go home, meaning, in accordance with
the meeting he just walked out of, he could go home
temporarily until we reconvened for [Owner’s] meeting
later in the day. He knew and I knew that [Owner] was
going to call him back once we reconvened to clarify if we
were essential and would remain open and work.
[]Claimant did not go home. The timesheet has him in at
two and a half hours. This was at 20 after 8:00 in the
morning. He didn’t go home until he quit at 10:30. He
immediately said to me, no, I’ll go to work. I said, okay,
let’s get to work, hoping to move [him] along to his
workstation and d[iffuse] any pressure on the other
employees. . . . I thought this was a settled issue because
he stayed, but I understand now that []Claimant is saying
I gave him carte blanche to go home at any time for health
reasons. That was not the case. I clearly did not. Health
reasons were never discussed. The conversation was
about whether we were essential or not. For him to state
later that he left because I said he could go home regarding
his health makes no sense. If I gave him permission to go
home because of his health and his health was an issue to
him, he would have left at that moment. Nothing changed
between the meetings. He left in the second meeting
around 10:30, right after [Owner] announced that we were
an essential business. While he was leaving in a rage, he
stated that he was not concerned for his health in front of
the entire group. This is why the UC Law encourages
communication between the employer and employee.
[]Claimant left in a rage, making no effort to resolve any
issues.
5
CR at 128-29.
Ultimately, on September 1, 2020, the Referee issued a Decision/Order
in which she determined that Claimant had voluntarily left work without cause of a
necessitous and compelling nature for doing so and, therefore, was ineligible for
benefits under Section 402(b). See CR at 138-42. On September 12, 2020, Claimant
appealed the Referee’s Decision/Order to the Board. See id. at 144-48.2 On January
27, 2021, the Board issued an Order disposing of Claimant’s appeal that states:
The [Board], after considering the entire record in
this matter, concludes that the determination made by the
Referee is proper under the [Law]. While the Board is
sensitive to [C]laimant’s health concerns related to the
COVID-19 pandemic, the Board finds that [C]laimant
made no efforts to discuss his health concerns with
[E]mployer and made no efforts to explore any solutions
or alternatives with [E]mployer, to allow him to safely
continue work with [E]mployer. Therefore, the Board
adopts and incorporates the Referee’s findings and
conclusions, and enters the following order:
The decision of the Referee is affirmed.
CR at 155. Claimant then filed the instant petition for review of the Board’s Order
affirming the Referee’s Decision/Order that he is ineligible for benefits under
Section 402(b) of the Law.
2
Specifically, Claimant stated the following basis for his appeal:
I disagree with the determination and am filing this appeal because
many of the “Findings of Fact” are inaccurate or do not apply to my
situation. In Findings of Fact (FOF) #7 and #9, it clearly states that
my employer told me I could go home and that they would notify
me of any further findings or matters. They did not. The section
that was denied, Section 402(b), assumes I quit or voluntarily left
my employment. I neither quit nor voluntarily left.
CR at 148.
6
On appeal,3 Claimant contends that the Board erred in affirming the
Referee’s Decision/Order that he is ineligible under Section 402(b) because he was
working in an unsafe work environment because COVID-19 protocols/procedures
were not in place at the time that he quit. Claimant also asserts that he had an
immunocompromised condition that put him at high risk if he contracted COVID-
19. As a result, due to the lack of COVID-19 protocols/procedures, Claimant
contends that he was forced to quit his employment due to his health.
However, as this Court has recently explained:
To show a necessitous and compelling reason under
Section 402(b) of the Law, a claimant must show that (1)
circumstances existed which produced real and substantial
pressure to terminate employment; (2) such circumstances
would compel a reasonable person to act in the same
manner; (3) the claimant acted with ordinary common
sense; and (4) the claimant made a reasonable effort to
preserve her employment. Solar Innovations, Inc. v.
Unemployment Comp[ensation Board] of Rev[iew], 38
A.3d 1051, 1056 (Pa. Cmwlth. 2012). Whether the reason
for [the c]laimant’s concerns were inadequate safety
measures by [the e]mployer or fears related to her and/or
her father’s health, or both, [the c]laimant’s burden to
make a reasonable effort to preserve her employment
required her to give notice to [the e]mployer as to her
concerns and health conditions and allow [the e]mployer
the opportunity to modify her work conditions. This is the
case even where there is a real and serious safety concern,
see Iaconelli v. Unemployment Compensation Board of
Review, 423 A.2d 754, 756 (Pa. Cmwlth. 1980), or where
a claimant has a medical condition which endangers her,
see St. Clair Hospital v. Unemployment Compensation
Board of Review, 154 A.3d 401 (Pa. Cmwlth. 2017). Once
3
Our scope of review is limited to determining whether constitutional rights were violated,
whether an error of law was committed, and whether necessary findings of fact are supported by
substantial evidence. Kirkwood v. Unemployment Compensation Board of Review, 525 A.2d 841,
843-44 (Pa. Cmwlth. 1987).
7
communicated, an employer must have a reasonable
opportunity to make accommodations with respect to the
work conditions and/or medical condition. See Blackwell
v. Unemployment Comp[ensation Board] of Rev[iew], 555
A.2d 279, 281-82 & n.6 (Pa. Cmwlth. 1989).
Lundberg v. Unemployment Compensation Board of Review (Pa. Cmwlth., No. 29
C.D. 2021, filed October 14, 2021), slip op. at 3.4
As stated above, both the Referee and the Board found as fact that
Claimant failed to notify Employer of his medical condition or his concerns
regarding the lack of safety in the workplace with respect to COVID-19. As outlined
above, both Owner’s and Owner’s Wife’s testimony before the Referee amply
support these findings of fact.5 As a result, the Board properly determined that
4
See Pa. R.A.P. 126(b) (“As used in this rule, ‘non-precedential decision’ refers to . . . an
unreported memorandum opinion of the Commonwealth Court filed after January 15, 2008. []
Non-precedential decisions . . . may be cited for their persuasive value.”).
5
We will not accede to Claimant’s request to review the Board’s credibility determinations
based on his testimony or that of his wife before the Referee. As this Court has stated:
[I]t is well settled that the Board is the ultimate finder of fact in
unemployment compensation proceedings. Thus, issues of
credibility are for the Board which may either accept or reject a
witness’ testimony whether or not it is corroborated by other
evidence of record. Findings of fact are conclusive upon review
provided that the record, taken as a whole, contains substantial
evidence to support the findings. This Court must examine the
evidence in the light most favorable to the party [that] prevailed
before the Board, and to give that party the benefit of all inferences
that can be logically and reasonably drawn from the testimony.
Chapman v. Unemployment Compensation Board of Review, 20 A.3d 603, 607 (Pa. Cmwlth. 2011)
(citations omitted). See also Wise v. Unemployment Compensation Board of Review, 111 A.3d
1256, 1262 (Pa. Cmwlth. 2015) (“It is irrelevant whether the record contains evidence to support
findings other than those made by the fact finder; the critical inquiry is whether there is substantial
evidence in the record to support the findings actually made . . . .”). As outlined above, the Board’s
findings are amply supported by evidence in the certified record of this case, and these findings
support the Board’s determination that Claimant is ineligible for benefits under Section 402(b).
8
Claimant is ineligible for benefits under Section 402(b) of the Law. See Lundberg,
slip op. at 4 (“[The c]laimant’s failure to give [the e]mployer notice of her concerns
or an explanation of her reasons for resigning at the time she did so negated any
opportunity for [the e]mployer to ameliorate the situation.”); id. (“While one can
sympathize with [the c]laimant’s fears in the face of the chaos attendant to the early
stages of the COVID-19 pandemic, the law does not excuse her of the duty to inform
[the e]mployer of her safety concerns and health problems and afford [the e]mployer
the opportunity to mitigate and/or accommodate them.”).
Accordingly, the Board’s order is affirmed.
MICHAEL H. WOJCIK, Judge
9
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
William G. Hastings, Jr., :
:
Petitioner :
: No. 104 C.D. 2021
v. :
:
Unemployment Compensation :
Board of Review, :
:
Respondent :
ORDER
AND NOW, this 13th day of April, 2022, the order of the
Unemployment Compensation Board of Review dated January 27, 2021, is
AFFIRMED.
__________________________________
MICHAEL H. WOJCIK, Judge