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decided: May 9, 1983.


Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Helen L. Sampson, No. B-196828.


Neil Leibman, for petitioner.

William Kennedy, Associate Counsel, with him Richard L. Cole, Jr., Chief Counsel, for respondent.

Judges Rogers, Craig and MacPhail, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 74 Pa. Commw. Page 196]

Helen L. Sampson, discharged by Broadcast Enterprises National, Inc. from the position of financial assistant, appeals a benefits denial by the Unemployment Compensation Board of Review, which affirmed a referee's conclusion that her refusal to work overtime constituted willful misconduct under section 402(e) of the Unemployment Compensation Law.*fn1

[ 74 Pa. Commw. Page 197]

In the morning of January 2, 1981, a Friday, the claimant's supervisor told her that she would be needed to work on a special project. After lunch that day, in response to the claimant's inquiry, the supervisor told the claimant that she could not begin work presently, but would have to take the work home with her that weekend. The claimant said that she would be unable to take any work home, because of previous commitments she had for the weekend.

At 4:00 p.m. that day, the company held a meeting with all of the employees who were to work on the project; the claimant did not attend. At 4:15 p.m., the company's vice-president emerged from the meeting, and asked the claimant why she did not attend, and the claimant explained that her supervisor, evidently assuming that the claimant was not going to do the work, had not asked her to attend. The claimant explained to the vice-president that she did not refuse to do the work, but that she had an emergency situation to attend to, and that she would be out of town over the weekend. The claimant then offered to come to work early Monday, before working hours, to complete the project. The vice-president did not accept that offer, and indicated that he had to speak to the company president. At 5:00 p.m. that afternoon, the claimant was called into her supervisor's office and fired, although she was never warned that her refusal to work over the weekend would result in her termination.

[ 74 Pa. Commw. Page 198]

The employer has the burden of proving that he discharged a claimant because of willful misconduct, Zuraw v. Unemployment Compensation Board of Review, 61 Pa. Commonwealth Ct. 548, 434 A.2d 1312 (1981). In determining whether an employee's refusal of an employer's work assignment constitutes willful misconduct, we must balance the reasonableness of the request with the reasonableness of the refusal. Kelly Page 198} v. Unemployment Compensation Board of Review, 56 Pa. Commonwealth Ct. 262, 424 A.2d 612 (1981).

In determining the reasonableness of the employer's request, the referee relied on the following findings of fact:

7. The work involved was of such importance to the company that the president offered the services of his wife to assist in the completion of the project and thereby ease the load on others.

9. The average amount of time anticipated to be spent by each employee on the weekend work was 3-hours.

10. The average time actually spent by each employee was 1 1/2 hours.

In ascertaining the reasonableness of the claimant's excuse, the referee found:

8. Claimant's prior commitment was to travel to Altoona, Pa., with relatives on Saturday morning to visit with a relative, who was to undergo an operation, to return home that Sunday night.*fn2

In balancing these concerns, the referee said:

In the instant case, the claimant was requested to assist the company in a critical situation by taking work home to complete over the weekend, but refused to do so; a chore which was expected to take about 3-hours to accomplish but which actually took 1 1/2 hours. Under

[ 74 Pa. Commw. Page 199]

    these circumstances, claimant's refusal was unreasonable. Even if claimant did have a prior commitment, she could have completed the work and still have satisfied her commitment.

However, in reaching this conclusion, the referee did not make findings regarding whether the employer had told the claimant that the work was expected to take three hours, or that the claimant would be fired if she refused to do the work. Furthermore, the conclusion that the employer's request was reasonable because the work ultimately took only one-and-a-half hours relies on facts that are known only through hindsight.

[ 74 Pa. Commw. Page 200]

The determination of whether the employer's request or the employee's refusal was reasonable requires more specific findings. For instance, we note that a one-time refusal to work overtime differs from a situation where an employee makes a blanket refusal to work overtime, see SKB Photo/Graphics, Inc. v. Unemployment Compensation Board of Review, 68 Pa. Commonwealth Ct. 260, 449 A.2d 74 (1982); Robertson v. Unemployment Compensation Board of Review, 53 Pa. Commonwealth Ct. 307, 417 A.2d 293 (1980), or where an employee refuses to work overtime, although, at the time he or she was hired, he or she agreed to be available for overtime work. See Pozeynot v. Unemployment Compensation Board of Review, 44 Pa. Commonwealth Ct. 455, 403 A.2d 1361 (1979); Hughes v. Unemployment Compensation Board of Review, 40 Pa. Commonwealth Ct. 638, 398 A.2d 236 (1979). Also, an employer's issuance of a warning to an employee that he will be fired if he refuses to work overtime can be significant. See, e.g., Kelly and Robertson. In addition, the seriousness of the claimant's basis for refusal is relevant. See, e.g., Unemployment Compensation Board of Review v. Page 200} Kells, 22 Pa. Commonwealth Ct. 479, 481, 349 A.2d 511, 513 (1975) ("An absence from work with notice to the employer that the employee was required to attend to an injured relative hospitalized in an emergency situation constitutes sufficient justification for not reporting to work").

Therefore, we must remand this case in order that the board or referee make the new findings needed to support new conclusions as to whether or not the employer's request and the claimant's refusal were reasonable.


Now, May 9, 1983, the order of the Unemployment Compensation Board of Review, decision No. B-196828, dated July 7, 1981, is remanded for additional findings of fact and conclusions of law relevant to the willful misconduct test discussed herein. Jurisdiction relinquished.


Case remanded.

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