Appeal from the Order of the Unemployment Compensation Board of Review in the case of In Re: Claim of Anthony Taylor, No. B-193018.
Michael Richman, with him Mary Louise Schutz, Steinberg, Greenstein, Gorelick & Price, for petitioner.
Francine Ostrovsky, Associate Counsel, with her Karen Durkin, Associate Counsel, and Richard L. Cole, Jr., Chief Counsel, for respondent.
Judges Rogers, Craig and MacPhail, sitting as a panel of three. Opinion by Judge Rogers.
[ 68 Pa. Commw. Page 261]
SKB Photo/Graphics, Inc. appeals from an order of the Unemployment Compensation Board of Review granting a claim for benefits to Anthony Taylor. Before his last day of work on October 24, 1980, Mr. Taylor had worked for SKB approximately ten months as an audiovisual production artist.
The facts adduced at a referee's hearing at which the claimant, his supervisor, and SKB's president testified are, except as we shall indicate, undisputed. In September, 1980, Mr. Taylor informed his supervisor that although he had orally agreed when hired to be available for overtime work and, in fact, had been required to work some eighty-three overtime hours during his ten month tenure, he would no longer be able to perform any overtime duties on account of his need to leave work promptly at the close of the normal work day in order to retrieve his two-year-old daughter from a nearby day care center. These arrangements for the care of the child were necessary, the claimant asserted, because his wife had recently taken a job and the most convenient child care facility was located a short distance from the claimant's place of employment with SKB.
[ 68 Pa. Commw. Page 262]
The supervisor, following consultation with SKB's president, told Mr. Taylor that his unwillingness to work overtime was unacceptable and would result in his termination. It was then agreed by the claimant and his supervisor that termination would not immediately follow but would be accomplished -- and here the exact nature of the agreement is disputed -- at such time as, in the claimant's version, he was able to find alternative employment or, in the employer's version, a replacement employee was found. Approximately one month later another person was hired by SKB to perform the claimant's duties and the claimant was discharged. A claim for unemployment compensation benefits was initially denied by the Bureau of Employment Security on the ground that the claimant had voluntarily left his employment without reason of a compelling and necessitous nature. A referee reversed, concluding that the claimant had been discharged but had been guilty of no disqualifying willful misconduct. The Board affirmed the referee's decision.
On this appeal SKB argues that the Board erroneously concluded that the claimant's refusal to perform overtime work was not willful misconduct. Such cases as Robertson v. Unemployment Compensation Board of Review, 53 Pa. Commonwealth Ct. 307, 417 A.2d 293 (1980) and Hughes v. Unemployment Compensation Board of Review, 40 Pa. Commonwealth Ct. 638, 398 A.2d 236 (1979) are cited by SKB for the proposition that an unjustified refusal to work overtime is disqualifying willful misconduct within the meaning of Section 402(e) of the Unemployment Compensation Law.*fn1 It is not seriously contested that the cases cited, as well as many others, establish this proposition.
[ 68 Pa. Commw. Page 263]
work he refused to perform might not thereafter have been required. Neither, in our view, is the employer required under these circumstances vainly to direct the employee to do that which he has asserted his certain unwillingness to do so as to obtain a refusal which is more "direct" and less "prospective" in nature. No persuasive reason has been offered why we should depart from our holding in Robertson that a "blanket refusal to work overtime", clearly operating prospectively and unjustified on the facts of that case, was disqualifying willful misconduct.
The Board further argues that its decision may be sustained because the claimant's refusal was justified by family circumstances beyond his control. The assessment of this contention, of course, requires a balancing of the reasonableness of the employer's request against the reasonableness of the claimant's refusal. Frumento v. Unemployment Compensation Board of Review, 466 Pa. 81, 351 A.2d 631 (1976); Patterson v. Unemployment Compensation Board of Review, 60 Pa. Commonwealth Ct. 53, 430 A.2d 1011 (1981). Here the reasonableness of the employer's continuing contractual demand of availability to perform overtime work is not questioned. The Board, it would appear, believed the claimant's refusal to ...