              IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Adrianne McConville,                        :
                Petitioner                  :
                                            :
             v.                             : No. 32 C.D. 2015
                                            : Submitted: August 28, 2015
Unemployment Compensation                   :
Board of Review,                            :
                 Respondent                 :


BEFORE:      HONORABLE DAN PELLEGRINI, President Judge
             HONORABLE MARY HANNAH LEAVITT, Judge
             HONORABLE ANNE E. COVEY, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE LEAVITT                                           FILED: November 10, 2015

             Adrianne McConville (Claimant) petitions for review of an
adjudication of the Unemployment Compensation Board of Review (Board)
finding Claimant eligible for unemployment benefits under Sections 401 and 4(u)
of the Unemployment Compensation Law (Law) in weeks where her hours were
reduced.1 The Board denied compensation for the weeks in which she could have
worked full-time hours but chose to work fewer hours.2 Claimant contends the
Board erred because she did not choose to reduce her hours of work. We affirm.




1
  Act of December 5, 1936, Second Ex.Sess., P.L. (1937) 2897, as amended, 43 P.S. §§801,
753(u). Section 401 states that “[c]ompensation shall be payable to any employee who is or
becomes unemployed[.]” 43 P.S. §801.
2
  This appeal concerns benefit weeks from January 2012 through September 2012.
             Claimant is a substitute librarian and has worked part-time for the
Carnegie Library (Employer) since 1994. She remains employed by Employer,
currently earning $20.70 per hour. In 2010, she worked a temporary part-time
position at Employer’s Brookline branch, which position ended in January 2012.
At that point, Claimant returned to her prior position as a substitute at the
Brookline branch. Because her weekly hours were reduced, Claimant filed for UC
benefits.
             The Duquesne UC Service Center granted Claimant benefits, finding
she was entitled to a partial benefit to compensate for her reduced work hours.
Employer appealed, asserting it had work available and that Claimant had opted to
work fewer hours. A hearing was held before the Referee.
             At the hearing, Karen Meharra, the manager of the “substitute pool” at
Brookline, testified. Notes of Testimony (N.T.), 10/31/2012, at 6. She explained
that substitutes can work anywhere from 0 to 35 hours a week, but they must work
one shift per month in order to remain in active status. Meharra distributes a
calendar with all of the available shifts to each member of the substitute pool, and
substitutes respond by identifying the shifts for which they are available.
Sometimes substitutes get the shift they requested, and sometimes they do not.
Sometimes no substitute requests a particular shift.         In that case, Meharra
explained that she tries to fill the shift by sending an e-mail to every substitute on
the e-mail distribution list. Claimant is on the e-mail distribution list and received
Meharra’s notices. Meharra noted that in 2012, Claimant requested fewer shifts
and did not respond to e-mails for the unfilled shifts.




                                          2
                Meharra testified that in 2012, she had 1,201 substitute shifts available
in the positions of librarian, assistant librarian and clerk.3 Claimant was qualified
to work in any of the three positions. Generally, Meharra gives a clerk first
priority for a clerk shift and does the same for assistant librarians and librarians.
An effort is also made to spread the hours as evenly as possible between each
substitute.
                Claimant requested to work 82 total shifts and received 55 of the
shifts she requested. According to Meharra, “[t]here were many other shifts that
[Claimant] could work but that’s all that she asked for.” N.T., 10/31/2012, at 18.
In 2012, 28 shifts went unfilled. Meharra testified that “even though [Claimant]
was available[,] she did not take those” shifts when asked. Id. at 6. Substitutes can
access Employer’s calendar daily, see what shifts remain available and contact
Meharra for an assignment. Meharra considered Claimant to be a good employee
and she “missed her not being – you know accepting any positions except for a
few.” Id. at 7.
                Claimant testified that she worked part-time, averaging 25 hours per
week from 2010 until January 2012.                 Since then, however, her “hours have
dropped and haven’t picked up….” Id. at 26. She claimed she was not selected to
work because her hourly compensation was higher than many of the substitutes.
Id. at 27.
                The Referee found that Claimant chose to limit her work shifts and,
thus, was not unemployed under Section 4(u) of the Law.4 Claimant appealed to



3
    The Brookline branch has 18 locations where Claimant may work.
4
    Section 4(u) deems an individual
(Footnote continued on the next page . . . )
                                               3
the Board, which ordered a remand for additional evidence and fact-finding.
Specifically, it directed the Referee to determine how many hours Claimant
worked during certain weeks; how often she checked the work calendar; and why
she did not apply for the 28 shifts left unfilled.
              At the remand hearing on January 29, 2013, Employer submitted
additional evidence on the specific hours and days Claimant worked. Employer’s
witness, Paul Vanderwiel, the director of human resources, explained that the
documentary evidence established that Claimant could have worked additional
hours but chose not to do so.
              Claimant testified that she checked the shift calendar at least once a
day.   With respect to the 28 shifts left unfilled, Claimant explained that her
scheduled work intersected with three of those shifts and, thus, she could not take
them. She also testified that she had requested all open shifts and could not
explain why she was not scheduled to work.
              Following the remand hearing, the Board vacated the Referee’s
determination and remanded the matter to the UC Service Center to calculate the
number of hours in Claimant’s “full-time work” week under 34 Pa. Code §65.73.5



(continued . . . )
        unemployed (I) with respect to any week (i) during which he performs no services
        for which remuneration is paid or payable to him and (ii) with respect to which no
        remuneration is paid or payable to him, or (II) with respect to any week of less
        than his full-time work if the remuneration paid or payable to him with respect to
        such week is less than his weekly benefit rate plus his partial benefit credit.
43 P.S. §753(u).
5
  It provides:
        (a) A claimant’s full-time work for purposes of section 4(u) of the law (43 P. S.
        §753(u)) shall be determined in accordance with the following:
(Footnote continued on the next page . . . )
                                                4
(continued . . . )
             (1) Except as provided in paragraphs (4) and (5), a claimant’s full-
             time work is determined by reference to the claimant’s base year,
             as follows:
                     (i) The total number of hours the claimant
                     worked in the base year for all employers is divided
                     by the number of weeks in the base year in which
                     the claimant worked to determine the claimant’s
                     full-time work.
                    (ii) If information for only a portion of the base
                    year is available, the formula in subparagraph (i) is
                    applied to the portion of the base year for which
                    information is available to determine the claimant’s
                    full-time work.
                    (iii) If the claimant’s full-time work cannot be
                    determined in accordance with subparagraph (i) or
                    (ii), the Department may determine the claimant’s
                    full-time work by another method that calculates the
                    average number of hours per week that the claimant
                    worked during weeks in the claimant’s base year in
                    which the claimant worked.
             (2) For purposes of paragraph (1), the number of hours that a
             claimant worked during a week in the base year for an employer in
             excess of the customary number of hours the claimant worked per
             week for that employer in the base year is excluded from the
             determination of the claimant’s full-time work.
             (3) For purposes of paragraph (1), if a claimant’s normal work
             schedule in the base year consisted of multiple week cycles, and
             the cycle normally included one or more weeks during which the
             claimant did not work, all weeks in the cycle are deemed weeks in
             which the claimant worked.
             (4) If a claimant voluntarily leaves employment to accept new
             employment that provides fewer hours of work, the number of
             hours the claimant customarily works at the new job constitutes the
             claimant’s full-time work.
             (5) If a claimant limits the number of hours per week the claimant
             will work, that number of hours constitutes the claimant’s full-time
             work.
(Footnote continued on the next page . . . )
                                              5
The Board explained that Claimant’s full-time work hours needed to be established
before it could be determined that her hours had been reduced, thereby rendering
her “unemployed” within the meaning of Section 4(u) of the Law.
              The UC Service Center issued a new determination that Claimant’s
normal full-time work week was 24 hours and that Claimant had worked at least 24
hours per week during the weeks at issue, i.e., January 21, 2012, through
September 22, 2012. As such, Claimant was not unemployed and not entitled to
any benefits.        The UC Service Center also issued a notice of non-fault
overpayment for the claim weeks benefits were received.
              Claimant appealed.        On August 14, 2013, the Referee conducted
another hearing to supplement the record from the prior hearings. Claimant was
questioned about why she requested assignments to shifts for which she would not
have “first priority.” N.T., 8/14/2013, at 30. Claimant responded that she could
only request shifts that were posted and “the majority of the times there are no
librarian positions posted[.]” Id.
              Meharra testified that she has managed the substitute pool since 2002.
She reiterated that the substitutes provide her with a list of the shifts for which they
are available. If there is a last minute opening or a shift no one has selected, she




(continued . . . )
       (b) For purposes of section 4(u) of the law, if a claimant’s normal work
       schedule during the benefit year consists of multiple week cycles, and the
       claimant normally works a different number of hours, which may include zero,
       during the weeks in the cycle, for each week in the cycle the claimant is deemed
       to be working the number of hours determined by dividing the total number of
       hours worked during the cycle by the number of weeks in the cycle.
34 Pa. Code §65.73.


                                              6
notifies all the substitutes, who respond if interested. Meharra cannot require a
substitute to work an unfilled shift.
             The Referee calculated Claimant’s full-time work week for her base
year as 14.8 hours per week, “plus whatever additional hours she chooses to
work.”    Referee Decision, 9/25/2013, Finding of Fact No. 10.           The Referee
concluded that Claimant’s full-time work week had not been reduced and, thus, she
was ineligible for benefits. Further, Claimant was issued a non-fault overpayment
of $8,355. Claimant again appealed to the Board.
             The Board rejected a key finding of the Referee. The Board found
that Claimant’s full-time work was 28 hours per week. The Board noted that in
2012, Claimant asked to be considered for 82 shifts, out of the total 1,201
substitute positions available. Further, on 22 occasions, Employer had a substitute
position available of which Claimant was notified but did not request to work. For
each of the months at issue, the Board made detailed findings on the number of
shifts available, the number of shifts Claimant requested, the number of shifts
Claimant received and the dates, if any, of the unfilled shifts in that month.
             The Board concluded that Claimant was entitled to unemployment
benefits in any week she worked less than 28 hours, if she had established a
willingness to work 28 hours in that particular week.            The Board rejected
Claimant’s contention that she was willing to work 28 hours a week, every week,
as not credible because on 22 occasions work was available to her but she did not
request the shift. The Board found that Claimant “was not unemployed for those
weeks as she limited the hours she was available.”              Board Adjudication,
12/22/2014, at 6. The Board listed the weeks involving unfilled shifts as the week




                                          7
of February 24, 2012, the week of March 3, 2012,6 “the weeks involving April 4, 6,
9, 18, 19, 26 and 28, 2012; the weeks of May 5, 8, 10, and 12, 2012; the weeks of
June 7, 9, 15, 16, 18, 19, 23, 25, 26, 29, 2012, and September 1, and 26, 2012.” Id.
Further, Claimant applied for six shifts in July and was assigned those shifts.
Accordingly, the Board concluded she was not unemployed for the month of July.
               The Board reversed the Referee in part. It denied benefits for certain
weeks but found Claimant was “not ineligible for benefits under Section 401 and
Section 4(u) for the remainder of the applicable weeks.” Id. at 7.7
               In her petition for this Court’s review, Claimant raises one issue.8
Claimant argues that the Board erred in finding she was not unemployed during all
benefit weeks at issue, because she attempted to work additional hours. The Board
counters that Claimant’s argument simply requests that her version of the case be
accepted, without identifying an error on the Board’s part.
               Section 401 of the Law makes compensation payable to an employee
who “becomes unemployed.” 43 P.S. §801. Section 4(u) of the Law defines
“unemployed” as follows:

               An individual shall be deemed unemployed (I) with respect to
               any week (i) during which he performs no services for which
               remuneration is paid or payable to him and (ii) with respect to
               which no remuneration is paid or payable to him, or (II) with
               respect to any week of less than his full-time work if the

6
  In its brief, the Board notes its typographical errors in listing the February and March dates as
occurring in 2013.
7
  The Board noted that Claimant’s non-fault overpayment needed to be recalculated based on its
determination.
8
  Our scope of review determines whether constitutional rights were violated, an error of law
occurred, or whether the factual findings are supported by substantial evidence of record. Lello
v. Unemployment Compensation Board of Review, 59 A.3d 1153, 1156 n.3 (Pa. Cmwlth. 2013).


                                                8
              remuneration paid or payable to him with respect to such week
              is less than his weekly benefit rate plus his partial benefit credit.

43 P.S. §753(u). Claimant argues that her normal “full-time work” week was 25
hours per week and that her work week was reduced through no fault of her own
when she was placed in the substitute pool in January 2012.9 Claimant further
argues that she attempted to increase her work hours by applying for available
shifts but ended up working fewer than 25 hours per week.
              The Board is the ultimate fact-finder and has the authority to resolve
all conflicts in evidence, witness credibility, and weight accorded the evidence.
Dumberth v. Unemployment Compensation Board of Review, 837 A.2d 678, 681
(Pa. Cmwlth. 2003). Where substantial evidence supports the Board’s findings,
they are conclusive on appeal.               Pennsylvania Liquor Control Board v.
Unemployment Compensation Board of Review, 879 A.2d 388 (Pa. Cmwlth. 2005).
Substantial evidence exists if the record “taken as a whole” supports the findings.
Taylor v. Unemployment Compensation Board of Review, 378 A.2d 829, 831 (Pa.
1977). On appeal, this Court’s

              duty is to examine the testimony in the light most favorable to
              the party in whose favor the Board has found, giving that party
              the benefit of all inferences that can logically and reasonably be
              drawn from the testimony, to see if substantial evidence for the
              Board’s conclusion exists.

Id.




9
 Claimant seems not to appreciate the fact that the Board’s finding that her full-time work week
was 28 hours resulted in more reduced hours, thereby increasing her eligibility for
unemployment benefits.


                                               9
              Employer’s evidence established that on 28 occasions it had no
substitute to fill a shift. Claimant was notified of each opportunity and chose not
to accept the shift.10 Claimant countered that on three of these occasions, her
schedule conflicted with the unfilled shift. Claimant did not account for the other
25 occasions. The Board found that on 22 occasions Claimant did not request the
shift assignment even though it did not conflict with her schedule.                     Board
Adjudication, 12/22/2014, Finding of Fact No. 9. Even after “[C]laimant was
notified of this availability [she] did not contact [Employer].” Id. Claimant did
not challenge this factual finding of the Board. In fact, Claimant did not challenge
any of the Board’s factual findings. “If a petitioner fails to challenge the Board’s
factual findings, they are conclusive on appeal.”               Gibson v. Unemployment
Compensation Board of Review, 760 A.2d 492, 494 (Pa. Cmwlth. 2000).
              The Board’s factual findings specifically identified the weeks when
work was available to Claimant but she chose not to request an assignment.
Claimant does not dispute that in July 2012, Employer scheduled her for every
shift she requested. In short, the evidence supports the Board’s conclusion that
Claimant was not “unemployed” within the meaning of Section 4(u) of the Law for
the weeks in question.
              Accordingly, the order of the Board is affirmed.


                                                   ______________________________
                                                   MARY HANNAH LEAVITT, Judge



10
   The Board rejected Claimant’s statement that she wanted to work more hours as “not credible”
based on “22 occasions when [she] failed to request work and [Employer] had no employee to
fill those shifts.” Board Adjudication, 12/22/2014, at 6.


                                              10
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Adrianne McConville,              :
                Petitioner        :
                                  :
           v.                     : No. 32 C.D. 2015
                                  :
Unemployment Compensation         :
Board of Review,                  :
                 Respondent       :

                              ORDER

           AND NOW, this 10th day of November, 2015, the order of the
Unemployment Compensation Board of Review, dated December 22, 2014, is
AFFIRMED.
                                     ______________________________
                                     MARY HANNAH LEAVITT, Judge
