             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Dale S. Zimmerman,                               :
                              Petitioner         :
                                                 :
                      v.                         :   No. 283 C.D. 2019
                                                 :   Submitted: July 26, 2019
Unemployment Compensation                        :
Board of Review,                                 :
                    Respondent                   :



BEFORE:        HONORABLE RENÉE COHN JUBELIRER, Judge
               HONORABLE P. KEVIN BROBSON, Judge
               HONORABLE CHRISTINE FIZZANO CANNON, Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
JUDGE COHN JUBELIRER                                 FILED: August 13, 2019


       Dale S. Zimmerman (Claimant) petitions for review of an Order of the
Unemployment Compensation (UC) Board of Review (Board), which affirmed a
decision by a Referee that found Claimant ineligible for benefits pursuant to Section
402(b) of the UC Law (Law).1 Claimant asserts the Board erred in finding he did
not have a necessitous and compelling reason to voluntarily quit. Upon review, we
affirm.



       1
         Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§ 802(b), which provides, in relevant part, that “[a]n employe shall be ineligible for compensation
for any week . . . [i]n which his unemployment is due to voluntarily leaving work without cause
of a necessitous and compelling nature . . . .”
      The facts of this case are not in dispute. Claimant worked for Progressive
Logistics (Employer) as a full-time truck unloader from August 30, 2018, to
September 7, 2018. During this training period, Employer paid Claimant a flat,
hourly rate. Upon completion of his training period, Claimant would be paid based
upon the contents of each truck and the amount of time it took to unload the truck.
Claimant believed Employer was permitting other employees to cut line so that they
would be able to make more money. Claimant discussed this practice of distributing
work, which he considered unfair, with Employer, but Claimant did not believe
Employer would address it. Claimant did not want to work for an employer he
considered unethical. Without anything in particular occurring on September 7,
2018, Claimant quit his employment, effective immediately.
      Claimant subsequently filed for UC benefits. A local UC Service Center
issued a Notice of Determination finding Claimant ineligible for benefits under
Section 402(b) because Claimant voluntarily quit as a result of dissatisfaction with
his employment. The UC Service Center also assessed an overpayment for benefits
Claimant received to which he was not entitled because of the ineligibility
determination. Claimant appealed, and a hearing was scheduled before a Referee.
Claimant testified on his own behalf before the Referee.2
      Following the hearing, the Referee issued a Decision affirming the UC
Service Center’s determination that Claimant was ineligible for UC benefits
pursuant to Section 402(b). The Referee noted that mere dissatisfaction with one’s
working conditions was not a necessitous and compelling reason to quit one’s
employment. (Referee’s Decision at 3.) Here, the Referee found Claimant was
dissatisfied with the manner in which he would be paid. (Id. at 2.) However, the


      2
          Employer did not appear at the hearing.


                                                2
Referee further found that at the time Claimant quit, Claimant was still in his training
period and was being paid a flat, hourly rate. (Id.) Thus, the Referee concluded
Claimant was not being adversely affected by Employer’s business practice. (Id. at
3.)
       Claimant appealed the Referee’s Decision to the Board, which affirmed and
adopted and incorporated the Referee’s findings and conclusions as its own. The
Board reiterated that disagreement with an employer’s management practice was not
a necessitous and compelling reason to quit one’s job. Claimant now petitions for
review of the Board’s Order.
       On appeal,3 Claimant argues the Referee and Board improperly focused on his
quitting and not the reasons for why Claimant quit. He called Employer’s practice
of allowing other employees to “chip” or cut line “unethical and unfair” and a form
of “modern day ‘slavery.’” (Claimant’s Brief at 8-9.) As a result, he maintains he
had a necessitous and compelling reason for quitting.
       The Board responds that mere dissatisfaction with one’s work is not a
necessitous and compelling reason to quit. It further argues that employees have no
right to participate in management decisions, such as distribution of work.
Moreover, according to the Board, Claimant did not show that Employer’s practice
was illegal or unethical. Finally, it points out that Claimant was still in his training
period at the time he quit and was still earning a flat, hourly rate. Therefore, he was
not harmed by Employer’s practice.




       3
         This Court’s scope of review is limited to determining whether constitutional rights were
violated, whether an error of law was committed, or whether necessary findings of facts are
supported by substantial evidence. Johns v. Unemployment Comp. Bd. of Review, 87 A.3d 1006,
1009 n.2 (Pa. Cmwlth. 2014).


                                                3
      Under Section 402(b) of the UC Law, in order to be eligible for benefits,
claimants who have voluntarily quit their employment must show that they had
necessitous and compelling reasons for doing so.             Collier Stone Co. v.
Unemployment Comp. Bd. of Review, 876 A.2d 481, 484 (Pa. Cmwlth. 2005). Here,
the facts are not in dispute, including that Claimant voluntarily left his employment.
Thus, the burden is on Claimant to show that he had a necessitous and compelling
reason for quitting. Latzy v. Unemployment Comp. Bd. of Review, 487 A.2d 121,
123 (Pa. Cmwlth. 1985). A claimant can satisfy this burden by demonstrating that:
“(1) circumstances existed which produced real and substantial pressure to terminate
employment; (2) such circumstances would compel a reasonable person to act in the
same manner; (3) the claimant acted with ordinary common sense; and[] (4) the
claimant made a reasonable effort to preserve [the claimant’s] employment.”
Brunswick Hotel & Conference Ctr., LLC v. Unemployment Comp. Bd. of Review,
906 A.2d 657, 660 (Pa. Cmwlth. 2006). As the Referee and Board noted, “[m]ere
dissatisfaction with wages or working conditions is not sufficient to establish
necessary and compelling reasons to quit employment.” Monaco v. Unemployment
Comp. Bd. of Review, 565 A.2d 127, 130 (Pa. 1989). Whether a claimant had
necessitous and compelling reasons for terminating his employment is a question of
law subject to review by this Court. Wise v. Unemployment Comp. Bd. of Review,
111 A.3d 1256, 1261 (Pa. Cmwlth. 2015).
      The sole reason proffered by Claimant for quitting his position with Employer
was his perceived inequity in the way work was distributed. Claimant does not
allege work was distributed on any discriminatory basis. Rather, he asserts that, in
his opinion, work was distributed to employees who were stronger and could work
faster, which was unfair to other employees. While Claimant may have perceived



                                          4
Employer’s practices as unfair, he has not established they are illegal. We are
sympathetic to Claimant’s concerns, but distribution of work is a management
prerogative and Claimant’s dissatisfaction with how work was distributed was not a
necessitous and compelling reason for quitting. See Crater v. Unemployment Comp.
Bd. of Review, 317 A.2d 63, 64 (Pa. Cmwlth. 1974) (finding a claimant’s
dissatisfaction with work location, pay, and job distribution was insufficient to
constitute cause of a necessitous and compelling nature).
      Claimant also testified at the hearing before the Referee that he “didn’t want
to continue to work at a place like that” and that he is “a very ethical person and . . .
didn’t want to continue if that’s the way they do things.” (Hr’g Tr. at 9, Record Item
11.) In Ayres v. Unemployment Compensation Board of Review, 598 A.2d 1083 (Pa.
Cmwlth. 1991), this Court was confronted with another claimant who, for personal
reasons, disagreed with the business practices of her employer. There, the claimant,
after four hours of training and one hour of work, quit her position as a telemarketer
because she believed the employer’s method of selling life insurance was unethical
and against her conscience. We held that absent an “express violation of law,
regulation or professional ethics . . . , an employee does not establish cause of a
compelling or necessitous nature . . . unless the employee proves that the duties
required by employer so affected his or her professional and personal integrity that
it would justify the voluntary quit.” Id. at 1087. We further explained that “[t]he
practice of employer, at best, must be highly questionable so that avoidance of the
practice would be the prudent course of action.” Id. There, because the claimant
only presented unsubstantiated beliefs without reference to any law or regulation,
regardless of how sincere the claimant’s beliefs, they were not sufficient to establish
a necessitous and compelling reason to quit. Id. We explained that the claimant



                                           5
may have acted in subjective good faith, but she did not show an objective
justification for quitting her employment. Id.
      Similar to the claimant in Ayres, Claimant here has not pointed to any illegal
action by Employer in making work assignments. We do not doubt that Claimant
found Employer’s practice highly objectionable. However, we cannot conclude, as
a matter of law, that this subjective belief constitutes a necessitous and compelling
reason to voluntarily quit one’s employment. As stated above, it is well settled that
“[a] disagreement with an employer’s policies or dissatisfaction with working
conditions centered on differences with an employer’s management style is not a
compelling enough cause to voluntarily quit one’s job.” Gioia v. Unemployment
Comp. Bd. of Review, 661 A.2d 34, 37 (Pa. Cmwlth. 1995).
      Finally, we agree with the Board that Claimant had not yet suffered any harm
by the alleged employment practices. Claimant testified that his training period was
for two weeks and he had just completed his first week of training when he abruptly
quit. During his training period, Claimant was paid a flat, hourly rate. (Hr’g Tr. at
5, 9.) Only after he completed his training would Claimant be subject to having his
compensation calculated based upon the contents of the trucks and how quickly he
unloaded them. Any harm Claimant would have suffered was speculative. In
Monaco, the Pennsylvania Supreme Court held that claimants who were protesting
a possible change in pay did not have a necessitous and compelling reason for
quitting because any effect was only speculative. 565 A.2d at 131. Here, Claimant’s
protest in the form of quitting his employment was likewise premature.




                                         6
      Because Claimant quit his employment without cause of a necessitous and
compelling reason, we must affirm the Board’s Order.



                                     _____________________________________
                                     RENÉE COHN JUBELIRER, Judge




                                       7
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Dale S. Zimmerman,                    :
                      Petitioner      :
                                      :
                 v.                   :   No. 283 C.D. 2019
                                      :
Unemployment Compensation             :
Board of Review,                      :
                    Respondent        :



                                   ORDER


     NOW, August 13, 2019, the Order of the Unemployment Compensation
Board of Review, dated February 15, 2019, is AFFIRMED.



                                    _____________________________________
                                    RENÉE COHN JUBELIRER, Judge
