Hohl v. UCBR – Cmwlth. Court reported decision – Sept. 22, 2021
https://www.pacourts.us/assets/opinions/Commonwealth/out/478CD20_9-22-21.pdf?cb=1
Held: Case remanded to UCBR, which failed to make the findings necessary for the court to make an informed decision in case involving a voluntary quit based on alleged threat to claimant by a co-worker. There were no findings about claimant’s credibility concerning a) the threat of physical violence against him by a co-worker, or b) whether claimant had provoked the threat.
From the opinion
Basic law on voluntary quit cases
In order for a claimant to establish cause of a necessitous and compelling nature, he must show: (1) the existence of circumstances that created real and substantial pressure to leave employment; (2) that such circumstances would compel a reasonable person to leave employment; (3) that he acted with ordinary common sense; and (4) that he made a reasonable attempt to continue his employment. Comitalo v. UCBR., 737 A.2d 342, 344 (Pa. Cmwlth. 1999). Where the claimant has failed to take all necessary and reasonable steps to preserve the employment relationship, he cannot demonstrate a necessitous and compelling reason for leaving his job and is ineligible for benefits. PECO Energy Co. v. UCBR., 682 A.2d 58, 61 (Pa. Cmwlth. 1996). “Each [situation] must be examined on an individual basis to understand the exigencies the claimant faced at the time [he] decided to separate from employment.” Kelly v. UCBR., 172 A.3d 718, 723 (Pa. Cmwlth. 2017), appeal denied, 184 A.3d 547 (Pa. 2018).
Threats of violence
Threats of violence and fear for one’s safety may constitute necessitous and compelling circumstances for quitting employment. See Kama Corp. v. UCBR., 410 A.2d 974 (Pa. Cmwlth. 1980); see also Howell v. UCBR., 501 A.2d 718 (Pa. Cmwlth. 1985) (reversing denial of benefits when claimant quit over being struck in face by another employee and, after employee was terminated, employee returned to workplace and again struck claimant in face). As we explained in Scott v. UCBR (Pa. Cmwlth., No. 637 C.D. 2014, filed November 7, 2014):
Concern for personal safety, including fear of physical attacks by co[]workers, can constitute necessitous and compelling reasons for leaving employment. The mere fact that the claimant is subjectively afraid, however, is not sufficient; the safety risk must be objectively real to constitute a sufficient reason for resigning from one’s job.
Moreover, even where the safety concern is real and serious, the claimant must show that he made a reasonable attempt to seek protection from the danger and that the employer’s response gave him no choice but to leave his employment. If the employer has offered alternative work arrangements that could solve the safety issue, quitting without even attempting to work under those arrangements does not constitute a reasonable attempt to preserve employment and bars the claimant from benefits.[8] “If the employer promises to take action to alleviate the problem, good faith requires that the employee continue working until or unless the employer’s action proves ineffectual.” Craighead-Jenkins [v. UCBR, 796 A.2d [1031,] 1034 [Pa. Cmwlth. 2002]. Scott, slip op. at 5-6 (some citations omitted).
No burden on claimant to request alternative work arrangements -- The Referee had based his reasoning on the fact that Claimant “made no inquiry with [E]mployer to work in a different section of the warehouse or to work at a different [E]mployer location.” While we have held that, in order to make a reasonable attempt to preserve his employment in a situation where an employer offers alternative work arrangements in response to a report of a physical threat, an employee must attempt the alternative work arrangement, see Scott, slip op. at 5-6, we have not required an employee to request an alternative work arrangement in the face of a physical threat. In Comitalo., 737 A.2d at 345. we held that, “[u]ltimately[,] [an] employer bears the responsibility for eliminating harassment against employees in the workplace,” recognizing that “there is a certain level of conduct that an employee will not be required to tolerate and that the Court will not place all responsibility upon an employee to resolve his . . . work dilemma.” Comitalo, 737 A.2d at 345. We believe an employer bears a similar level of responsibility in the face of threats of physical violence. Here, there is no record evidence that Employer offered Claimant an alternative work arrangement that Claimant rejected.
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Editor’s note: The court could/should have discussed its black letter law about the need for admin. decisions to have findings and reasons.
Findings and reasons - 2 Pa. C.S. § 507 - “All adjudications….shall contain findings and the reasons for the adjudication….”
a) Basic findings of fact are “essential to the validity” of an administrative decision. The findings must be “sufficiently specific to enable the reviewing court to adequately review the findings and decide questions of law. Begis, 398 A.2d 643. Accord, Page’s Dept. Store v. Velardi, 346 A.2d 556, 561 (Pa. 1975). “Failure to make the requisite findings is a violation of due process,” Begis; 2 Pa. C.S. §507.
b) Findings must be specific, not general and conclusory. Koggan v. UCBR, 472 A.2d 277 (Pa. Cmwlth 1984)
c) Findings must be complete. They must cover all issues “necessary to resolve the issues raised by the evidence which are relevant to the decision.” Koggan, Page’s Dept. Store.
d) The appellate court may not infer from the absence of a finding that a question was resolved in favor of the prevailing party before the agency. Koggan
e) Where findings are not adequate, the appellate court will usually remand the case, since it is not the court’s function to be a fact-finder.” Koggan, Page’s Dept. Store.
f) credibility findings – Held sufficient in UC cases if the UCBR simply says it chose to believe one side or the other. Peak v., UCBR, 501 A2d 1383, 1387 (Pa. 1985), 1387. Compare, Higgins v. WCAB, 854 A2d 1002, 1007 (Pa. Cmwlth 2004), where court held that a credibility determination was not adequate because the fact-finder failed to "issue a reasoned decision" and to "articulate some objective basis for [its] credibility determinations."
g) federal law – At least in the area of Social Security, the requirement of giving findings and reasons, 5 U.S.C. sec. 557(c), is much more demanding and is enforced much more strictly. See e.g., Cotter v. Harris, 642 F.2d 700, 704-707 (3d Cir. 1981).
