UC - willful misconduct - violation of ER rule - inconsistent enforcement - findings of fact

Leao v. UCBR – Cmwlth. Court – June 14, 2022 – ** unreported memorandum opinion

 

Held: Failure of referee and UCBR to make findings to resolve conflicting testimony about inconsistent enforcement of  ER rule required remand for findings on the issue, which goes to whether ER met its burden of proving deliberate violation of a rule, a requirement for a finding of willful misconduct.

 

Inconsistent enforcement of an employer rule negates finding of willful misconduct  -- 

In Gordon Terminal Serv. Co. v. UCBR, 211 A.3d 893, 898 (Pa. Cmwlth. 2019). the Court held that a claimant may challenge whether an employer meets its burden of proof in a rule violation case by establishing that the rule is not consistently enforced, and, if it is not, the rule violation does not support a finding of disqualifying willful misconduct. 211 A.3d at 899. “[I]nconsistent enforcement occurs where an employer enforces a rule so inconsistently that it no longer appears to be a rule that employees must follow.” Id. at 900 (emphasis added). See also Great Valley Publ’g v. Unemployment Comp. Bd. of Rev., 136 A.3d 532, 538-39 (Pa. Cmwlth. 2016) (holding that where an employer admittedly tolerated violations of its policy governing employees’ internet use, the employer failed to establish that the claimant’s use of internet amounted to willful misconduct). The “inconsistent enforcement of a rule results in an employer’s inability to prove willful misconduct.”5 Gordon Terminal Serv. Co., 211 A.3d at 900 (emphasis added). In both Gordon Terminal Service Co. and Great Valley Publishing, the Court held that the employers could not meet their burdens of proving a deliberate rule violation so as to support a finding of willful misconduct where the employers did not consistently enforce their rules. See also Fegley Mgmt. & Energy v. Unemployment Comp. Bd. of Rev. (Pa. Cmwlth., No. 11 C.D. 2020,  filed Oct. 14, 2020), slip op. at 10 (holding that “[b]ecause [the e]mployer did not show that it consistently enforced its own . . . policy, it was as if there was no rule at all”).6 

 

5 This distinguishes a claim of “inconsistent enforcement” from “disparate treatment,” which is an affirmative defense and occurs when an employer enforces a rule differently for different employees. Gordon Terminal Serv. Co., 211 A.3d at 899. 

6 Pursuant to Pennsylvania Rule of Appellate Procedure 126(b), Pa.R.A.P. 126(b), and Section 414(a) of this Court’s Internal Operating Procedures, 210 Pa. Code § 69.414(a), an unreported opinion of this Court, while not binding, may be cited for its persuasive value. 

 

The referee UCBR failed to resolve conflicting testimony about inconsistent enforcement  

While the Referee acknowledged that Claimant could “establish . . . that the policy is not fairly enforced or uniformly applied,” the Referee rendered no findings or credibility determinations regarding the evidence on whether the Policy was uniformly enforced or otherwise addressed the issue beyond this statement. Further, notwithstanding Claimant’s argument to the Board regarding the inconsistent enforcement of the Policy, the Board likewise made no credibility determinations or findings regarding this conflicting testimony and did not address the issue. Because the Board did not resolve the conflicting evidence and address the issue of Employer’s uniform enforcement of the Policy, we cannot exercise effective appellate review over the Board’s Order to determine whether it erred in finding that Employer had met its burden of proving a deliberate violation of the Policy. 

 

Findings & 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 to the agency, 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." 

 

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** An unreported decision of the Commonwealth Court can be cited “for its persuasive value, but not as binding precedent” under 210 Pa. Code 69.414 (citing judicial opinions in filings).

 

UC - phone hearing - tech. problems - due process

Walthour v. UCBR – Cmwlth. Court – May 12 2022 – reported, precedential

 

UCBR order reversed and case remanded where claimant was unanble to participate in phone hearing becaiuse of technical problems (blocked call issues)  and referee’s failure tom make reasonable efforts to contact claimant..

 

The court followed its (unpublished) op8nion in  O’Leary v. UCBR (Pa. Cmwlth., No. 984 C.D. 2020, filed October 27, 2021), where it noted that

the [Board] does not cite—and our own review of [the Board’s] regulations fails to find—any authority for the proposition that “[p]arties are responsible for their own technology and in charge of their phone and incoming calls,” let alone any regulation suggesting that technological difficulties of unknown cause can preclude a party from having his day in court. Even though an administrative tribunal has discretion over how to conduct a hearing, there are still “certain fundamental rights that must be honored, including the right to a fair hearing in accordance with due process of law.” Collins v. Unemployment Comp. Bd. of Rev., 415 A.2d 145, 146 (Pa. . .  .. .While it [wa]s unclear here whether the problem was with [the c]laimant’s cell phone or otherwise, the Board’s policy which expects the average [UC] claimant to have a sophisticated understanding and proficiency in program[m]ing technological devices is patently unreasonable.  [emphasis in original]

Generally, where a claimant has yet to testify regarding her failure to participate at a hearing, we would remand to the Board for it to make factual findings. However, in this case, the record before the Referee conclusively establishes that Claimant contacted the Referee prior to the conclusion of the hearing, asking why she had yet to receive a call. . . . It also establishes that the Referee did not attempt to contact Claimant, either through his office staff or the alternate phone number in his records. Instead, he faulted Claimant for having a phone that did not accept calls from blocked numbers and closed the record. As such, the evidence of record conclusively establishes that Claimant contacted the Referee’s office “in real time,” was apparently never informed that there was an issue with her phone, and, like the claimant in O’Leary, was improperly charged with being responsible for her own technology and in charge of her phone and any incoming calls. 

Accordingly, for the above reasons, we vacate the Board’s order and remand this matter to the Board for it to hold a hearing and make findings of fact relative to (1) the timeliness of Claimant’s appeal to the Referee, (2) Claimant’s allegation that she did not receive the UC Service Center’s determination, and (3) whether Claimant’s allegation, if true, warrants nunc pro tunc relief, such that the Board must accept the untimely appeal and consider it on its merits.