             IN THE COMMONWEALTH COURT OF PENNSYLVANIA

GNC Community                                 :
Federal Credit Union,                         :
                                              :
                             Petitioner       :
                                              :
                      v.                      : No. 1063 C.D. 2018
                                              : Submitted: February 14, 2018
Unemployment Compensation                     :
Board of Review,                              :
                                              :
                             Respondent       :

BEFORE:         HONORABLE PATRICIA A. McCULLOUGH, Judge
                HONORABLE MICHAEL H. WOJCIK, Judge
                HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE WOJCIK                                                FILED: March 4, 2019

                GNC Community Federal Credit Union (Employer) petitions for
review from an order of the Unemployment Compensation Board of Review
(Board), which determined that Tracy Taylor (Claimant) was not ineligible for
unemployment compensation (UC) benefits under Section 402(e) of the
Unemployment Compensation Law (Law)1 (relating to willful misconduct).
Employer contends that the Board’s determination that Claimant established good
cause to justify her willful misconduct is erroneous and not supported by substantial
evidence. Additionally, Employer asserts that the Board violated Employer’s due
process rights and failed to follow requisite procedures. Discerning no error, we
affirm.

       1
           Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§802(e).
               Claimant worked for Employer as a full-time receptionist from May
2014 until her last day of work on January 26, 2018. After her separation from
employment, Claimant applied for UC benefits, which a local service center granted.
Employer appealed, and a referee held a hearing.
               At the hearing, the referee received evidence and heard testimony from
Claimant and two witnesses for Employer: Dianna Cecchini, Employer’s CEO
(CEO) and Renae Colaizzi, Employer’s Branch Manager (Branch Manager).2 The
referee found that Claimant committed willful misconduct by refusing to perform
her assigned job functions.         Thus, the referee determined that Claimant was
ineligible for UC benefits under Section 402(e) of the Law. Claimant appealed.
               Based on the record created at the referee’s hearing, the Board found
the following facts. Employer maintains an employee conduct policy, which states,
in relevant part, that unacceptable job performance includes insubordination or
failing to follow manager directions. Claimant was aware of Employer’s policy.
Board Opinion, 7/17/18, Findings of Fact (F.F.) Nos. 2-3.
               In May 2014, Employer hired Claimant to be a receptionist for its main
bank located in downtown New Castle (main branch). In August 2014, Employer
opened a branch bank in Neshannock, approximately three miles from the main
branch (satellite branch). At that time, Employer instructed Claimant to work at both
bank branches on a daily basis. Claimant began her day at the main branch, took
lunch, and then traveled to and worked at the satellite branch, where she finished her
day. F.F. Nos. 4-5.
               In February 2016, Claimant met with CEO regarding her work hours.
CEO informed Claimant that Employer pays her for 40 hours per week; however,


      2
          Claimant and Employer were both represented by counsel.
                                              2
Claimant’s time records showed that she was working less than 40 hours. CEO
directed Claimant to take a 45-minute lunch instead of a one-hour lunch to make up
the difference. During the meeting, Claimant requested reimbursement for the
mileage she accrued traveling between the bank branches. CEO agreed to pay her
the current IRS mileage rate on a monthly basis. Claimant again approached CEO
about compensation for mileage and, in May 2017, she was informed that Employer
would reimburse her the mileage, but never did. F.F. Nos. 6-8.
             In December 2017, Claimant began having transportation issues. She
requested the promised reimbursement for mileage and to stay at the main branch
during the winter. On January 2, 2018, Claimant did not go to the satellite branch.
Claimant received permission from the CEO to remain at the main branch due to a
staffing shortage. Two days later, Claimant took her lunch at 3:09 p.m. due to a busy
workday. Upon informing CEO, CEO directed Claimant not to travel to the satellite
branch that day. F.F. Nos. 9-11.
             On January 5, 2018, CEO initiated a meeting with Claimant regarding
traveling between the two branches and voiced an issue with Claimant frequently
taking a late lunch, which allowed for only a minimal amount of time at the satellite
branch. Claimant informed CEO that the tires on her vehicle were bad and her other
vehicle was having electrical issues. Claimant requested to remain at the main
branch during the winter. CEO stated she would get back to her on the issue,
reiterated that Claimant must continue to travel between offices daily, and directed
her to take a lunch by 1:30 p.m. F.F. Nos. 12-13.
             On January 11, 2018, Claimant, following Employer’s written
procedural policy, filed a written complaint with the President of Employer’s Board
of Directors regarding not receiving reimbursement for mileage. Later that month,


                                         3
Claimant met with the President, and they discussed multiple options for resolving
Claimant’s concerns about traveling between the offices. Claimant asked to remain
at either branch for the entire workday, rather than partial days, citing transportation
issues. Claimant stated it was difficult to find a ride in the middle of the day to take
her to the satellite branch. President indicated that all options would be considered;
however, he informed Claimant that the decision was ultimately up to CEO.
F.F. Nos. 14-15.
             On January 26, 2018, CEO met with Claimant.               CEO presented
Claimant with a four-page job description for Claimant’s position and directed her
to sign it. The job description included a provision for daily travel between branches,
without mileage reimbursement. Employer indicated that Claimant was paid for 40
hours of work when she frequently worked less than 40 hours and that this difference
was approximately the same amount that Claimant would be paid for mileage and,
as such, Employer would consider that her compensation for traveling between the
bank branches. Claimant refused to sign the job description, and CEO discharged
Claimant for insubordination in violation of Employer’s policies. F.F. Nos. 16-18.
             The Board concluded that Employer has a right to make reasonable
changes to an employee’s job duties. Commuting three miles a day between
branches on a daily basis is a reasonable job change. Claimant performed her new
job duties beginning in August 2014 until January 26, 2018, when she refused to
sign an updated job description that included the duty to commute between branches.
The Board determined that Claimant’s refusal to accept the requirement of
commuting without mileage reimbursement constituted an act of insubordination.
             However, the Board concluded that Claimant demonstrated good cause
for her refusal. Employer had agreed to reimburse her monthly for mileage, but


                                           4
never did. Claimant followed Employer’s policy by filing a complaint with the
President of Employer’s Board of Directors. Although multiple solutions were
proffered, in the end, CEO chose not to make any accommodations and instead
revised Claimant’s job duties to require daily commute between branches without
mileage reimbursement. The Board determined that Claimant acted reasonably
under the circumstances by acting within the process outlined for resolving
complaints and had good cause for refusing to accept CEO’s offer for settlement of
her complaint. Thus, the Board reversed the referee’s determination and granted
benefits to Claimant. Employer’s petition for review to this Court followed.3
               On appeal, Employer argues that:                the Board’s findings are not
supported by substantial evidence; the Board erred by failing to affirm the referee’s
decision; and the Board denied it due process.


                                      Willful Misconduct
               First, Employer argues that the Board’s findings are not supported by
substantial evidence.         Claimant was aware, and had agreed to, the travel
requirements of the job, yet refused to travel. Claimant had no issue with the travel
assignment and compensation arrangement for three years. There was never a


       3
         Our review of the Board’s decision is limited to determining whether constitutional rights
were violated, whether an error of law was committed or whether necessary findings of fact were
supported by substantial evidence. Wise v. Unemployment Compensation Board of Review, 111
A.3d 1256, 1261 n.5 (Pa. Cmwlth. 2015). In addition, we review for capricious disregard of
competent evidence “in every case in which such question is properly before the court.” Leon E.
Wintermyer, Inc. v. Workers’ Compensation Appeal Board (Marlowe), 812 A.2d 478, 487 (Pa.
2002). “A capricious disregard of evidence occurs where the fact finder willfully and deliberately
disregards competent and relevant evidence that one of ordinary intelligence could not possibly
have avoided in reaching a result.” Wise, 111 A.3d at 1262. “[W]here there is substantial evidence
to support the agency’s factual findings and those findings support the legal conclusions, “it should
remain a rare instance in which an appellate court would disturb an adjudication based upon
capricious disregard.” Id. (quoting Wintermyer, 812 A.2d at 487 n.14).
                                                 5
promise to reimburse Claimant for mileage.           Instead, Claimant was paid for
additional, unworked hours as compensation for the mileage it took to drive to the
satellite branch. In addition, Claimant committed other acts of insubordination,
including taking lengthy lunch breaks and failing to appear at the satellite branch in
a timely manner.     According to Employer, the Board ignored this evidence.
Claimant did not prove just cause for her actions.
             Section 402(e) of the Law provides, “[a]n employe shall be ineligible
for compensation for any week . . . [i]n which his unemployment is due to [her]
discharge . . . from work for willful misconduct connected with his work . . . .”
43 P.S. §802(e). “[W]illful misconduct is defined by the courts as: (1) wanton and
willful disregard of an employer’s interests; (2) deliberate violation of rules; (3)
disregard of the standards of behavior which an employer can rightfully expect from
an employee; or, (4) negligence showing an intentional disregard of the employer’s
interests or the employee’s duties and obligations.”        Johns v. Unemployment
Compensation Board of Review, 87 A.3d 1006, 1009 (Pa. Cmwlth.), appeal denied,
97 A.3d 746 (Pa. 2014) (citing Grieb v. Unemployment Compensation Board of
Review, 827 A.2d 422 (Pa. 2002)).
             The employer bears the initial burden of proving a claimant engaged in
willful misconduct. Johns, 87 A.3d at 1009. When asserting a discharge based on
a violation of a work rule, an employer must establish the existence of the rule, the
reasonableness of the rule, the claimant’s knowledge of the rule, and its violation.
Id. (citing Ductmate Industries, Inc. v. Unemployment Compensation Board of
Review, 949 A.2d 338 (Pa. Cmwlth. 2008)).
             Policy 5070 of Employer’s Employee Handbook governs employee
conduct and provides that “insubordination or failing to follow manager directions”


                                          6
constitutes unacceptable conduct subject to corrective action. Reproduced Record
(R.R.) at 118a. In addition, this Court has defined insubordination as:

             A willful disregard of an employer’s instructions, esp.
             behavior that gives the employer cause to terminate a
             worker’s employment . . . [or] an act of disobedience to
             proper authority; esp., a refusal to obey an order that a
             superior officer is authorized to give” and an
             unwillingness “to submit to authority . . . disobedience of
             orders, infraction of rules, or a generally disaffected
             attitude toward authority.

Scott v. Unemployment Compensation Board of Review, 105 A.3d 839, 846 (Pa.
Cmwlth. 2014), appeal denied, 125 A.3d 779 (Pa. 2015) (citations omitted).
             Once an employer meets its burden of proving willful misconduct, the
burden shifts to the employee to prove good cause for her actions. Johns, 87 A.3d
at 1010. An employee establishes good cause where her actions are justified or
reasonable under the circumstances. Docherty v. Unemployment Compensation
Board of Review, 898 A.2d 1205, 1208-09 (Pa. Cmwlth. 2006). A determination of
“willful misconduct requires a consideration of ‘all of the circumstances, including
the reasons for the [claimant’s] noncompliance with the employer’s directives.’” Id.
(quoting Navickas v. Unemployment Compensation Board of Review, 787 A.2d 284,
288 (Pa. 2001)).
             Further, in UC cases, the Board is the ultimate fact-finder and is
empowered to resolve all issues of witness credibility, conflicting evidence and
evidentiary weight. Wise, 111 A.3d at 1261-62 (citing Ductmate, 949 A.2d at 342).
It is irrelevant whether the record contains evidence that would support findings
other than those made by the Board; the proper inquiry is whether substantial
evidence supports the findings actually made. Id. at 1262. Substantial evidence is


                                         7
“such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Id. A reviewing court must examine “the evidence in the light most
favorable to the prevailing party, and give that party the benefit of all inferences that
can be logically and reasonably drawn from the testimony.” Id.
             Employer challenges statements made by the Board in its discussion
that “CEO chose not to accept any offered solution,” that “CEO met with [Claimant]
and reneged on the promise to pay for the mileage,” and that Claimant “was provided
with different reasons for why she was not going to be paid the mileage and, in good
faith, she filed a written complaint.” See Petitioner’s Brief at 7, 9 (quoting Board
Opinion at 4). According to Employer, Claimant was compensated for mileage.
Employer paid Claimant an additional 15 minutes each day to reimburse her for her
travel time between the two offices. R.R. at 25a, 28a. This quarterly-hour payment
amounted to more money than mileage reimbursement for a one-way three-mile trip.
R.R. at 25a-28a, 45a. Employer contends this evidence was ignored.
             Contrary to Employer’s assertions, this evidence was not disregarded,
but considered. See F.F. No. 17. However, the Board made numerous findings that
Claimant and Employer discussed mileage reimbursement on several occasions, and
Employer agreed to reimburse Claimant for mileage, but never did, despite multiple
requests for payment. See F.F. Nos. 6-9, 13, 14.
             The Board’s findings are supported by Claimant’s testimony, and, to
some extent, CEO’s own testimony. CEO testified that, as early as February of 2016,
Claimant requested mileage. R.R. at 28a. Claimant testified that Employer agreed
to reimburse her for mileage on a monthly basis. R.R. at 44a, 49a, 60a. Claimant
made several requests to be reimbursed, but was never paid for the mileage. R.R. at




                                           8
49a, 57a, 61a. CEO acknowledged that she and Claimant had several conversations
about mileage. R.R. at 63a.
             Although Employer asserts that compensation Claimant received for 40
hours a week while working for some fraction of time less than 40 hours a week was
higher than what Claimant would receive in mileage (Petitioner’s Brief at 9), that
assertion is not supported by sufficient evidence to reach that conclusion. Moreover,
CEO testified that Employer never reviewed such a cost analysis with Claimant.
R.R. at 25a. Claimant testified she was not compensated for 15 minutes to drive to
the satellite branch. R.R. at 57a.
             Insofar as Employer cites to other instances of insubordination, such as
lengthy lunch breaks and failure to appear at the satellite branch in a timely manner
or at all, CEO testified that she terminated Claimant because she refused to travel to
the satellite branch, not because she was tardy or exceeded her lunch break. R.R. at
33a-34a. Notwithstanding, Claimant testified that the instances cited by Employer
were authorized or excused by CEO or Branch Manager. For instance, CEO testified
that, on December 28, 2017, Claimant was gone for several hours midday without
her knowledge. R.R. at 29a. However, Claimant testified that she had taken her son
to a doctor’s appointment during the day and had advised her Branch Manager of
this appointment. R.R. at 46a. CEO testified that Claimant did not arrive at the
satellite branch on January 2, 2018. R.R. at 30a. According to Claimant’s testimony,
CEO allowed her to remain at the main branch that day because the main branch was
short a teller. F.F. No. 10; R.R. at 52a. CEO testified that, on January 4, 2018,
Claimant arrived late at the satellite branch. R.R. at 30a. Claimant testified that she
did not travel to the satellite branch that day because, by the late hour at which she
took lunch, she would have spent only a short time at the satellite branch and CEO


                                          9
excused her from travel that day. F.F. No. 11; R.R. at 53a. CEO also acknowledged
that she allowed Claimant to remain at the main branch during inclement weather.
R.R. at 29a.
               Further, Claimant testified that she did not have a set time for lunch,
and she was not told to take her lunch by 1:30 p.m. until the meeting with CEO on
January 5, 2018. R.R. at 45a, 53a, 56a. Claimant testified that the main branch was
much busier than the satellite branch, which caused her to take a late lunch break or
no lunch at all some days. R.R. at 56a. Claimant testified that at no point did she
stay at the main branch and not travel to the satellite branch without the approval of
the CEO. R.R. at 51a.
               Claimant, in accordance with Employer’s policy, filed a written
complaint regarding her travel between the two branches and mileage
reimbursement, among other issues, and met with the President of Employer’s Board
of Directors. F.F. No. 14; R.R. at 40a-43a. Although the options of working full
days in each of the two locations and providing mileage reimbursement were
proffered during the meeting, the ultimate decision was CEO’s. F.F. No. 15; R.R.
at 44a, 63a. CEO presented Claimant with an updated job description that required
Claimant to travel daily between the offices with no reimbursement for mileage. F.F.
No. 16; R.R. at 50a-51a. Claimant refused to sign the job description and was
discharged for insubordination. F.F. No. 18; R.R. at 51a.
               Upon review, the Board’s findings are supported by substantial
evidence. That Employer may have provided “a different version of the events, or
. . . might view the testimony differently than the Board, is not grounds for reversal
if substantial evidence supports the Board’s findings.” Tapco, Inc. v. Unemployment
Compensation Board of Review, 650 A.2d 1106, 1108-09 (Pa. Cmwlth. 1994). The


                                          10
Board’s findings support the determination that Claimant acted reasonably in
following Employer’s procedure for addressing work issues and had good cause for
refusing to accept CEO’s offer to resolve her complaint.


                                Referee’s Decision
             Next, Employer argues that the Board erred by failing to affirm the
referee’s decision. Employer takes issue with the fact that the referee examined the
same evidence and found in Employer’s favor. The Board did not indicate any
alleged errors made by the referee.
             In this regard, Employer misapprehends the Board’s role and our
standard of review in UC matters. The Board is the ultimate finder of fact and is not
bound by the referee’s findings and conclusions.           Peak v. Unemployment
Compensation Board of Review, 501 A.2d 1383, 1385 (Pa. 1985). It is the Board’s
“exclusive power to resolve conflicts in the evidence and to decide witness
credibility and the weight to be accorded the evidence.” Wise, 111 A.3d at 1261-62.
Further, we review the Board’s decision, not the referee’s, for errors of law and
evidentiary support. Id. at 1261 n.5. This argument is without merit.


                                      Due Process
             Next, Employer claims that the Board denied Employer basic due
process during the pendency of its appeal. First, the Board did not provide Employer
notice of the allowance of appeal, despite two inquiries. Pursuant to the Department
of Labor and Industry’s regulations, if appeals are allowed by the Board, notice must
be given to all interested parties. 34 Pa. Code §101.104(c). Second, Employer




                                          11
contends that the Board failed to provide Employer with an opportunity to file a
brief, while expressly granting Claimant the right to do the same.
             “It is well settled that the essential elements of due process in an
administrative proceeding are notice and an opportunity to be heard.” McFadden v.
Unemployment Compensation Board of Review, 806 A.2d 955, 958 (Pa. Cmwlth.
2002). In the context of a proceeding before the Board, these elements encompass
the right to notice as well as the right to request oral argument and to file a brief. Id.
             To that end, the Board’s regulations provide that “[t]he Board may
allow or disallow any application for a further appeal without hearing, solely on the
basis of the application and the record.” 34 Pa. Code §101.104(a). If allowed, the
Board “assumes jurisdiction of the appeal” and mails notification “to the last known
post office address of each interested party.” 34 Pa. Code §101.104(c).
             Further, “any of the interested parties may file a written request for oral
or written argument.” 34 Pa. Code §101.104(e). “Such request will be granted as
of course.” Mileski v. Unemployment Compensation Board of Review, 379 A.2d
643, 644 (Pa. Cmwlth. 1977); see 34 Pa. Code §101.104(e) (“the normal time
allowed for submitting written argument shall be 7 days from the date of the
request”). Each party shall be afforded the opportunity to reply to the arguments and
contentions of the other parties. 34 Pa. Code §101.104(e).
             Here, the record contains Claimant’s petition for appeal to the Board
and the cover sheet showing it was mailed to Employer’s counsel. R.R. 183a-85a,
187a. Employer does not deny receiving this notice, but complains that it did not
receive any “correspondence” from the Board indicating whether the Board allowed
or disallowed Claimant’s appeal. Petitioner’s Brief at 14-15. However, the lower




                                           12
portion of the petition for appeal indicates that the Board accepted the appeal and
assigned an appeal number. R.R. at 184a. Consequently, no further notice was due.
             As for Employer’s claim that the Board deprived Employer of an
opportunity to file a brief, Claimant’s counsel requested permission to file a brief on
her behalf and then filed one. R.R. at 182a. Employer acknowledged that it received
a copy of Claimant’s brief. R.R. at 200a. Although the regulations permitted
Employer to file its own brief, Employer did not seek the Board’s permission to do
so. Instead, Employer requested the Board to disregard Claimant’s brief because the
“previously established record is adequate to meet the Board’s fact finding
responsibilities and the parties were given ample opportunity to present their
testimony and evidence at the Referee hearing.” R.R. at 189a, 200a. Consequently,
Employer waived its opportunity to respond by brief. Upon review, Employer’s due
process arguments lack merit.
             Accordingly, we affirm.




                                        MICHAEL H. WOJCIK, Judge




                                          13
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


GNC Community                           :
Federal Credit Union,                   :
                                        :
                        Petitioner      :
                                        :
                  v.                    : No. 1063 C.D. 2018
                                        :
Unemployment Compensation               :
Board of Review,                        :
                                        :
                        Respondent      :



                                     ORDER


            AND NOW, this 4th day of March, 2019, the order of the
Unemployment Compensation Board of Review, dated July 17, 2018, is
AFFIRMED.




                                      __________________________________
                                      MICHAEL H. WOJCIK, Judge
