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decided: January 3, 1972.


Appeal from the Order of the Unemployment Compensation Board of Review, in case of In Re: Claim of Doris L. Holland, Decision No. B-107967, Appeal No. B-70-7-D-192.


Richard C. Shomaker, with him Anthony A. Barrante and Barrante, Barrante & Shomaker, for appellant.

Sydney Reuben, Assistant Attorney General, with him J. Shane Creamer, Attorney General, for appellee.

Judges Kramer, Manderino and Mencer, sitting as a panel of three. Opinion by Judge Mencer. Dissenting Opinion by Judge Manderino.

Author: Mencer

[ 4 Pa. Commw. Page 293]

This is an appeal from the decision of the Unemployment Compensation Board of Review (Board) denying benefits to Doris L. Holland (claimant) under Section 402(e) of the Unemployment Compensation Law of 1936, as amended, 43 P.S. § 802(e), which provides: "An employe shall be ineligible for compensation for any week -- * * * (e) In which his unemployment is due to his discharge or temporary suspension from work for willful misconduct connected with his work, * * *." Both the Bureau of Employment Security and the referee had rendered similar decisions.

The Findings of Fact of the Board were as follows:

"1. The claimant was last employed by Burger King, Incorporated, Allison Park, Pennsylvania, as a manager at $150.00 a week plus a commission for six

[ 4 Pa. Commw. Page 294]

    and a half months. Her last day of work was April 2, 1970.

"2. On claimant's last day of work she was discharged for violation of the company rules concerning attendance at work and hours of work.

"3. Claimant had knowledge of the company rules and procedures.

"4. The claimant's condition of employment was based on a requirement that she work fifty-four hours per week and, in particular, her hours were designated from 8 to 8:30 A.M. until 5:00 P.M., six days per week.

"5. The claimant had undertaken on her own to work a fifty-hour week and when confronted by her supervisor with a request that she agree in writing to abide by company policy, she refused this reasonable request by the employer."

The crux of the problem here revolves around the alleged existence of a written contract between claimant and the employer, Burger King, Inc., which agreement supposedly permitted claimant to "cut down" her 6-day work week of 54 hours to 50 or less hours a week after the operation of a new store (which she was to head as manager) was satisfactorily underway.

After the store was so underway, claimant evidently did spend fewer hours in the store. Her District Supervisor, John Rothwell (Rothwell), over an eight-day period called her at the store between 3:30 and 4:00 p.m. and was unable to reach her several times. In fairness to claimant, it is possible that Rothwell was unable to reach her because she may have been out of the store "bootstrapping" or doing public relations work required of her as store manager.

Since the store opened at 11:00 a.m., claimant was to begin work between 8:00 and 8:30 a.m., and, since she was to "break the store's bank," or count the first half of the day's receipts with the Relief Manager at

[ 4 Pa. Commw. Page 2955]

p.m., claimant was required to be in the store between those hours.

Evidently concerned that the store was being left without supervision too often and that only one manager was "breaking the bank" each day, Rothwell paraphrased in his own handwriting, on two lined pages of yellow paper, certain of the employer's rules (as stated in the company operating manual for stores) which he thought were being violated, and he then requested claimant and the Relief Manager to sign these papers.*fn1

[ 4 Pa. Commw. Page 296]

Claimant refused to do so contending that the rules were policy changes and in contravention of the written contract which she originally entered into. After a week had passed, Rothwell again asked claimant to sign the papers, but she again refused whereupon her employment was terminated.

In this case, in order for the Board to have denied compensation because of "willful misconduct" under Section 402(e) of the Unemployment Compensation Law, it would have had to conclude (1) that no written contract existed between claimant and employer, or at least no such contract modified the store manager's hours of employment as stated in the company manual; (2) that the rules paraphrased on the papers correctly mirrored those in the company manual or at least were reasonable under the circumstances; and (3) that Rothwell was reasonably justified and correct in insisting upon a written assurance of compliance with company rules rather than a mere verbal assurance.

[ 4 Pa. Commw. Page 297]

As to (1), the Board, in Findings of Fact Nos. 4 and 5, impliedly concluded that no written contract existed modifying the hours of employment. This conclusion is conclusive and binding upon us since substantial competent evidence does exist in the record to support these findings. Devlin Unemployment Compensation Page 297} Case, 165 Pa. Superior Ct. 153, 67 A.2d 639 (1949); Section 510, Unemployment Compensation Law, 43 P.S. § 830. The Board, as the trier of fact, chose to believe Rothwell that only an oral employment agreement was made, parts of which were certain P2A forms each titled "Personnel Hire/Change Authorization" (the earliest of these, although not signed by claimant, has the figure "54" under the abbreviation "Stdr. Hrs."), claimant's application form, and, by implication, the company operating manual. Furthermore, the first of two hearings concerning the case was adjourned in order to obtain, from Burger King's home office, the papers which comprised the employment agreement, including the alleged written contract, if any existed. No written contract was produced at the second hearing. In addition, claimant acknowledges that when she called the home office to request that the written contract be sent, she was told that no such contract existed. (R. 21; second hearing)

Concerning (2), the Board, in light of the duties of a store manager (see note 1, supra), obviously concluded that Rothwell's paraphrasing was correct and entirely reasonable under the circumstances. We must agree. Except for minor details meant to inform Rothwell of store routine, the paraphrasing reflects company policy.

Finally, as to (3), "Absences from work affect production, frequently make it impossible to utilize to the full extent the services of employes who are present and, when repeated time and again, without justification, tend to disrupt the discipline and order necessary for the proper maintenance of any enterprise." Devlin Unemployment Compensation Case, supra, 165 Pa. Superior Ct. at 155, 67 A.2d at 640. Rothwell's inability to reach claimant by telephone on several occasions during her working hours was sufficient reason to ask

[ 4 Pa. Commw. Page 298]

    for an assurance from claimant that she would abide by employment hours. Whether or not claimant actually was absent from the store too much, Rothwell was justifiably concerned, and it was not unreasonable for him to have demanded some tangible promise of compliance, especially when, with slight exceptions, the papers were not really policy changes at all.

"Willful misconduct" is not defined in the law, but it has been defined as including a deliberate violation of standards of behavior which the employer has the right to expect of his employe. Detterer Unemployment Compensation Case, 168 Pa. Superior Ct. 291, 77 A.2d 886 (1951).

Claimant's insistence that she was not required to work 54 hours a week, her unreasonable refusal to agree that she would work the full number of hours expected of her, and her obvious intention to cut back her weekly hours to 50 or less constituted "willful misconduct" within the meaning of Section 402(e). After reviewing the entire record carefully, we conclude that the decision is supported by competent and substantial evidence.*fn2

Decision affirmed.



[ 4 Pa. Commw. Page 299]

Dissenting Opinion by Judge Manderino, January 3, 1972:

I dissent. Findings of Fact by the Unemployment Compensation Board can be affirmed only if the record contains evidence to substantiate the Findings. The Board in this case made 5 Findings of Fact. The key Finding of Fact is number 4, which states:

"4. The claimant's condition of employment was based on a requirement that she work fifty-four hours per week and, in particular, her hours are designated from 8 to 8:30 A.M. until 5:00 P.M., six days per week."

There is no evidence in the record to substantiate this Finding. In fact, the employer's testimony on this point was as follows:

"A. 'Well all employees are hired on a basis of 54 hours a week in any restaurant operation. Inasmuch as Mrs. Holland is responsible for the entire store, there is no absolute limit as to what hours are necessary. If everything is operating correctly then she would have her prerogative to cut these down.'" (Emphasis added).

This testimony does not say that the claimant was required to work fifty-four (54) hours a week. It states that she had the "prerogative to cut" the hours if everything was operating correctly. There is no Finding of Fact that things were not operating correctly.

Since there is no evidence in the record to substantiate Finding of Fact Number 4, and since this Finding is essential to the legal conclusion made by the Board, the Board's decision should be reversed.

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