Appeal from the Order of the Unemployment Compensation Board of Review in the case of In Re: Claim of Barbara Askey, No. B-262805.
Michael A. Johnson, for petitioner.
David F. DeWees, Assistant Counsel, with him, Clifford F. Blaze, Deputy Chief Counsel, for respondent.
Judges Barry and Smith, and Senior Judge Narick, sitting as a panel of three. Opinion by Senior Judge Narick.
[ 122 Pa. Commw. Page 550]
Tedesco Manufacturing Co., Inc. (Employer) has appealed from a decision of the Unemployment Compensation Board of Review (Board) reversing a referee's denial of benefits to Barbara Askey (Claimant). We affirm.
Claimant worked as an order filler for Employer and her last day of work was August 31, 1987.*fn1 For approximately six months prior to Claimant's resigning from her job, she was harassed, often sexually, by other employees. Claimant testified that she resigned approximately one week after the final act of sexual harassment occurred. The referee denied benefits concluding that although Claimant was subject to sexual harassment she did not attempt to alleviate the problem by notifying the owner of the company before terminating her employment. The Board reversed, finding that the owner was aware of the harassment. Hence, this appeal by Employer.
[ 122 Pa. Commw. Page 551]
Employer's argument on appeal is threefold. Firstly, Employer argues that the Board acted improperly by omitting certain findings of the referee and inserting its own findings. Secondly, Employer argues that the Board's finding that the owner of the company was aware of the sexual harassment suffered by Claimant was not supported by substantial evidence. Thirdly, Employer argues that Claimant does not qualify for unemployment compensation benefits because she failed to communicate the alleged harassment to the owner of the company prior to her resignation.
At the hearing before the referee, Claimant appeared and presented testimony as to the sexual harassment she suffered on the job and that despite numerous complaints to her supervisor, no action was taken on her complaints and the harassment continued. Employer did not appear before the referee nor did it submit evidence on its behalf. Therefore, our scope of review of the Board's decision where the burdened party prevails below and is the only party to submit evidence is limited to determining whether there has been a constitutional violation, or an error of law and whether the findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704; Kirkwood v. Unemployment Compensation Board of Review, 106 Pa. Commonwealth Ct. 92, 525 A.2d 841 (1987).*fn2
Employer argues that the Board failed to include without reason or explanation the referee's finding of fact No. 3 -- that "[c]laimant did not register a complaint with the owner of the company prior to her voluntary
[ 122 Pa. Commw. Page 552]
termination of employment". Instead, the Board found in finding of fact No. 5 that "[t]he owner of the company for which Claimant worked was aware of the sexual harassment". Although the Board is the ultimate factfinder, it may not disregard findings by the referee which are based on uncontradicted evidence. Office of Attorney General v. Unemployment Compensation Board of Review, 111 Pa. Commonwealth Ct. 187, 533 A.2d 1087 (1987). However, the Board may make additional findings based on evidence which the referee failed to consider. Bolivar v. Unemployment Compensation Board of Review, 104 Pa. Commonwealth Ct. 534, 522 A.2d 688 (1987). We believe implicit in the Board's finding here is that although Claimant did not formally advise the owner of the company about the sexual harassment ...