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decided: March 20, 1979.


Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Isador Koblentz, No. B-133244-B.


William E. Schadler, with him Christianson & Meyer, for appellant.

Charles G. Hasson, Assistant Attorney General, with him Robert P. Kane, Attorney General, for appellee.

Judges Crumlish, Jr., Wilkinson, Jr. and MacPhail, sitting as a panel of three. Opinion by Judge Crumlish, Jr.

Author: Crumlish

[ 41 Pa. Commw. Page 325]

Isodor Koblentz's (Claimant) claim for unemployment compensation benefits was denied by the Bureau of Employment Security. He appealed the denial of benefits and a referee affirmed the decision, finding that Claimant was discharged from his job due to willful misconduct and thus was ineligible for benefits pursuant to Section 402(e) of the Unemployment Compensation Law (Act).*fn1 The Unemployment Compensation Board of Review (Board) affirmed. Thereafter, the record was remanded by stipulation of both parties to the Board for the taking of additional testimony and it then reconsidered its earlier decision and concluded that Claimant's conduct did not amount to willful misconduct and granted benefits.

Claimant had been employed as a maintenance man by Appellant for approximately three and one-half years when he was discharged on August 15, 1975, for an unexcused one-week absence from work. Prior to a fellow maintenance worker being laid off on August 8, 1975, Claimant had always had a co-worker to assist him in his work. After working singly for one week, Claimant found the strenuous nature of some of his

[ 41 Pa. Commw. Page 326]

    work involved was such that one man could not perform it alone. He, therefore, proposed a work sharing plan to an agent of his Employer whereby he and his former co-worker would alternate working weeks. The plan included an agreement between the two workers which provided that when an extra man was needed to assist the man working, his "off duty" partner would be available at no cost to the employer.

A conflict in the testimony arises with respect to events occurring after Claimant submitted his plan. Confident that his plan would be accepted by Employer management, Claimant testified that he was under the impression he would be notified by Employer if his plan was not accepted. Failing to receive a call on the status of his plan, Claimant assumed his plan had been accepted by Employer and that his co-worker had been notified to work the following week. As a result, Claimant failed to report for work the week of August 18. When he went to pick up his check the following week, he was notified he was fired for an unexcused one-week absence. Employer's agent, on the other hand, testified that Claimant had told her that the job was too much for one person to handle and that he could make Employer realize this by absenting himself for a week.

[ 41 Pa. Commw. Page 327]

In an unemployment compensation case, review by this Court is to determine questions of law and to determine whether findings of fact are supported by substantial evidence, leaving to the Board questions of credibility, evidentiary weight and the inferences to be drawn from the evidence. Gallagher v. Unemployment Compensation Board of Review, 32 Pa. Commonwealth Ct. 160, 378 A.2d 502 (1977). Furthermore, the party for whom the Board finds favorably is to be given the benefit of any inference which can be reasonably and logically drawn from the evidence. Winnail v. Unemployment Compensation Page 327} Board of Review, 31 Pa. Commonwealth Ct. 114, 375 A.2d 849 (1977).

Claimant argues, and Board so found, that he may not be charged for willful misconduct because he was unable to comply with the employment requirements. Specifically, Board found that to require Claimant to perform his duties alone would have been unreasonable and onerous. In determining whether the Board's finding that Claimant's conduct did not amount to willful misconduct was proper, we must be mindful that willful misconduct represents a disregard of standards of behavior which Employer has a right to expect of an employee. In order to properly evaluate the conduct of an employee discharged for alleged willful misconduct, it becomes necessary for us to look beyond the refusal of an employee to comply with Employer's directives and evaluate the reasonableness of those directives in light of all the circumstances. If an action of an employee is found to be justifiable or reasonable under the circumstances, it cannot be considered willful misconduct. Frumento v. Unemployment Compensation Board of Review, 466 Pa. 81, 351 A.2d 631 (1976); Unemployment Compensation Board of Review v. Iacano, 30 Pa. Commonwealth Ct. 51, 372 A.2d 1267 (1976).

The threshold issue confronting us is whether Employer's directive requiring Claimant to report for work and perform certain tasks without furnishing him any assistance was reasonable; if not, then Claimant acted reasonably by refusing to comply. The record reveals that Claimant had always had assistance in the past when the work required was too strenuous for one man to perform.*fn2 While we have held that

[ 41 Pa. Commw. Page 328]

    when an employer hires someone for a particular task, he does not then agree never to change or modify that task, any changes that are made must be reasonable under the circumstances. Tucker v. Unemployment Compensation Board of Review, 14 Pa. Commonwealth Ct. 262, 319 A.2d 195 (1974).

We are satisfied that the Board's finding that the change made by Employer requiring Claimant to now perform his work assignments without assistance would have put an unreasonable and onerous burden upon him is supported by substantial evidence in the record. Applying the rationale of the Supreme Court in Frumento, supra, to the totality of the facts and circumstances involved herein and using guidelines set forth in prior cases which have held an employer's directive to be unreasonable,*fn3 we hold the Board correctly concluded that Claimant is entitled to unemployment compensation benefits for the weeks in question.

Accordingly, we


And Now, this 20th day of March, 1979, it is ordered that the appeal of Condominium Corporation of Pennsylvania, Incorporated, Green Tree Village, be dismissed and that the decision of the Unemployment Compensation Board of Review be affirmed.



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