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MAXINE M. HELSEL v. COMMONWEALTH PENNSYLVANIA (10/22/80)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: October 22, 1980.

MAXINE M. HELSEL, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT

Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Maxine M. Helsel, No. B-165989.

COUNSEL

Jeffrey H. Gribb, for petitioner.

Steven Marcuse, with him David R. Confer, Assistant Attorneys General, Richard Wagner, Chief Counsel, and Edward G. Biester, Jr., Attorney General, for respondent.

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

Author: Macphail

[ 54 Pa. Commw. Page 322]

Maxine M. Helsel (Claimant) appeals to this Court from an order of the Unemployment Compensation Board of Review (Board) affirming the decision of a referee which denied unemployment compensation benefits to Claimant. The referee, in affirming the determination of the Bureau (now Office) of Employment Security (Bureau), found that Claimant voluntarily terminated her employment without cause of a necessitous and compelling nature and, therefore, was ineligible to receive benefits under the provisions of Section 402(b)(1) of the Unemployment Compensation Law (Law), Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. ยง 802(b)(1). For the reasons which follow, we affirm.

Claimant was employed by Proctor Silex Corporation (Employer) as an assembler at the average rate of $3.04 per hour from November 15, 1977 until June 16, 1978 at which time she was laid off due to a plant shut down. Claimant's last day of work was August 7, 1978, the first day of her return to work after she was recalled. On that day Claimant, after a brief assignment to the motor line, was directed to return to her regularly assigned department. Her supervisor then reassigned Claimant to work on the Juicit line.*fn1 Claimant refused the assignment. Upon Claimant's refusal to comply with his work order, the foreman

[ 54 Pa. Commw. Page 323]

    took her to the Personnel Office where he directed her to either resign or be terminated. After a discussion with the Personnel Manager, Claimant signed a resignation slip and left Employer's premises.

The issue presented for our consideration is whether the events described render Claimant's termination of employment voluntary or involuntary.*fn2 The referee found as facts that Claimant walked off her job and was not discharged. Claimant maintains, however, that while she did refuse to work on the Juicit line, her supervisor's action in directing her to resign or be terminated was tantamount to a firing. Although conflicts do exist in the record, we affirm the referee's findings.

This Court's scope of review in unemployment compensation appeals where the decision below was adverse to the party who bore the burden of proof before the Board, is limited to determining whether the findings of fact are consistent with each other and with the conclusions of law and whether the findings can be sustained without a capricious disregard of competent evidence. Sweigart v. Unemployment Compensation Board of Review, 47 Pa. Commonwealth Ct. 421, 408 A.2d 561 (1979). Whether an employee's unemployment is a result of voluntarily leaving work is a question of law and properly subject to our review. The resolution of that legal question normally depends upon the underlying findings of fact. Sears, Roebuck & Co. v. Unemployment Compensation Board of Review, 39 Pa. Commonwealth Ct. 170, 394 A.2d 1329 (1978). Finally, we note that this Court must examine the testimony in the light most favorable to the party

[ 54 Pa. Commw. Page 324]

    in whose favor the Board rendered its decision. Taylor v. Unemployment Compensation Board of Review, 474 Pa. 351, 378 A.2d 829 (1977).

With respect to the severance of an employment relationship, the term "voluntary" has been defined by the Superior Court to mean leaving on one's own motion as opposed to being discharged. Labor and Industry Department v. Unemployment Compensation Board of Review, 133 Pa. Superior Ct. 518, 3 A.2d 211 (1938). "[W]here the employe, without action by the employer, resigns, leaves or quits his employment, his action amounts to 'voluntarily leaving work,'. . . ." Id. at 522, 3 A.2d at 214. In order for an employer's actions to constitute a discharge, they must demonstrate the "immediacy and finality of a 'firing'." Sweigart, supra at 425, 408 A.2d at 563.

In the instant case, the record reveals that in her summary interview with the Bureau, Claimant wrote that she "did refuse to work on the jusit [sic] line -- and when they told me I was to work there or else -- I went home." At the hearing before the referee, the following exchange between the referee and Claimant occurred:

QR: You were given the alternative, either do the job; or go home?

AC: Right.

QR: You were given the alternative, either do the job on the Juicit line or go home?

AC: I said that I won't work there and that was it. . . . I didn't say anything else.

This testimony indicates that Claimant left her employment on her own initiative. Other testimony, however, shows some confusion over whether Claimant voluntarily left or was discharged. Claimant's supervisor testified that, "I took her to personnel and I said she resigned or she is terminated." The Personnel Manager testified that Employer's policy is that "if

[ 54 Pa. Commw. Page 325]

    you refuse to work, it is insubordination" and that as a result of Claimant's failure to work she was "[t]erminated, walked off the job."*fn3

After a thorough review of the record we conclude that, as a matter of law, the Board did not err in finding that Claimant voluntarily terminated her work. We also find substantial evidence in the record to support the referee's findings of fact which were affirmed by the Board.*fn4 Claimant clearly did not intend to comply with her work assignment. The fact that her supervisor expressed a willingness to fire her if she did not formally resign does not alter the impact of her actions. When told she would have to work or go home, Claimant chose to go home. Furthermore, "[t]he fact

[ 54 Pa. Commw. Page 326]

    that conflicting evidence is presented does not mean that there is no substantial evidence to support the eventual finding since it is the function of the Board, and not this Court, to resolve questions of credibility and conflicts in testimony." Martin v. Unemployment Compensation Board of Review, 36 Pa. Commonwealth Ct. 304, 306, 387 A.2d 998, 1000 (1978). In a voluntary termination case if a claimant asserts that he did not leave employment voluntarily, the burden of proving that point lies with him. Bowman v. Unemployment Compensation Board of Review, 49 Pa. Commonwealth Ct. 170, 410 A.2d 422 (1980). Claimant has not met her burden.

Because we have found that Claimant voluntarily terminated her employment, we must also determine whether she has met her burden of proving a necessitous and compelling reason for the termination. Bowman, supra. From her testimony it appears that Claimant's refusal to work was based on the lower wage she believed she would receive while working on the Juicit line as well as her dissatisfaction with the foreman when he would not assign another worker to the line in Claimant's place. "It is well settled law that dissatisfaction with wages and working assignments does not constitute cause of necessitous and compelling nature for terminating ones [sic] employment." Happe v. Unemployment Compensation Board of Review, 39 Pa. Commonwealth Ct. 486, 487, 395 A.2d 701, 701 (1979).

The order of the Unemployment Compensation Board of Review is affirmed.

Order

And Now, this 22nd day of October, 1980, the Order of the Unemployment Compensation Board of Review, Decision Number B-165989, dated November 20, 1978 is hereby affirmed.

Disposition

Affirmed.


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