           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Christopher J. Powers,         :
                               :
                    Petitioner :
                               :
            v.                 : No. 773 C.D. 2019
                               : Argued: June 12, 2020
Unemployment Compensation      :
Board of Review,               :
                               :
                    Respondent :


BEFORE:       HONORABLE MICHAEL H. WOJCIK, Judge
              HONORABLE ELLEN CEISLER, Judge
              HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE WOJCIK                                                    FILED: July 10, 2020


                Christopher J. Powers (Claimant) petitions for review of the April
23, 2019 order of the Unemployment Compensation Board of Review (Board).
The Board held that Claimant is ineligible for benefits under Section 402(b) of the
Unemployment Compensation Law (Law)1 because he voluntarily left his
employment with Construction Services International (Employer) without

       1
         Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§802(b). Section 402(b) of the Law provides that an employee shall be ineligible for
compensation for any week in which his unemployment “is due to voluntarily leaving work
without cause of a necessitous and compelling nature.” Whether a claimant had necessitous and
compelling cause to voluntarily leave his employment is a question of law subject to this Court’s
review. Pennsylvania Gaming Control Board v. Unemployment Compensation Board of Review,
47 A.3d 1262, 1265 (Pa. Cmwlth. 2012).
necessitous and compelling cause. Claimant raises three issues on appeal:2 (1)
whether substantial evidence supports the Board’s finding that Claimant
voluntarily left his employment; (2) whether Claimant demonstrated necessitous
and compelling cause to leave his employment; and (3) whether Claimant’s report
to his union representative, who promptly contacted Employer, was adequate
notice to Employer for purposes of Section 402(b).


                                Facts and Procedural History
               Claimant is a member of the Laborers’ International Union of North
America, Local 57 (Union). Claimant began working for Employer in June 2017;
his last day of work was Friday, August 10, 2018. The local service center
determined that Claimant was ineligible for benefits because he did not take all
reasonable and necessary steps to preserve his employment prior to leaving.
Claimant appealed, and a referee held a hearing on January 14, 2019. Claimant
was represented by counsel, and Employer was represented by its president, Herb
Scheuren (Scheuren).
               Claimant testified that he was the only member of his Union working
at the job site. He noted that Union representatives were not allowed at the site,
which was a construction project for the Defense Logistics Agency, an agency of
the U.S. Department of Defense. Claimant’s duties involved using a laser device
to check ground elevation and advising the excavator operator where the stone or
subgrade was located.
               Claimant stated that on the date in question, he noticed a high spot and
asked Richard Snyder (Snyder), the excavator operator, to crop it. Snyder called

      2
          The Board is not participating. Employer intervenes. Pa. R.A.P. 1531(a).


                                               2
him a name and did not grade the area. At the end of the day, Claimant asked
Snyder why he would not comply. Claimant said that Snyder “became unhinged”
and “threw [a] tirade.” Reproduced Record (R.R.) at 71a. According to Claimant,
Snyder told him that nobody gave a shit what Claimant had to say. Then Snyder
said he wanted to kick Claimant’s ass and, “I’ll fucking kill you, you know, you
don’t know how crazy I am.” Id. Claimant stated Snyder was confrontational and
yelling and was within arm’s reach as Claimant kept backing up.            Claimant
testified that he felt threatened and walked away.
             Claimant said he went to his truck and just sat there, flustered. While
he was there, David Scheuren, the president’s brother and Claimant’s supervisor
(Supervisor), came by, and Claimant walked over to get his paycheck. Claimant
said that when he got his check, Supervisor started laughing and mumbled to
himself, “Now I know what that is all about.” R.R. at 73a. Claimant said he took
that to mean that Snyder was still carrying on. Claimant explained that in light of
Supervisor’s comment and laughter, he did not talk to Supervisor about the
incident.
             The following Monday, Claimant went to the Union hall before 7:00
a.m. and spoke with his representative, George Hutt. Claimant said he did not go
back to the job site because he believed doing so could put him in further jeopardy;
instead, he related the details of the incident to Hutt, who assured Claimant that he
would take care of the problem. Claimant said he understood that Hutt would
speak to Employer and that Claimant would be able to return to the job site and
feel safe.
             Claimant testified that Hutt later called him and reported that
Employer did not want him back and was letting him go due to a lack of work.


                                          3
R.R. at 74a.     After speaking to Hutt, Claimant applied for unemployment
compensation benefits and indicated he was laid off due to lack of work. Claimant
maintained that he did not quit his job. R.R. at 75a.
             On cross-examination, Claimant stated he did not remember calling
Supervisor to say he was not coming in that day because he “had some stuff to do.”
R.R. at 81a. However, Claimant said that he likely did that because it was the
decent thing to do. Claimant testified that he did not discuss this incident in detail
with Employer because (1) he considered Snyder’s reaction to be an unusual and
bizarre response and did not want to jeopardize the man’s employment, and (2) he
did not think Employer would be responsive to his concerns. Claimant said that he
believed that the Union could resolve the situation, noting that the Union had
offered him the work.
             Hutt, a Union field representative, testified that he found Claimant
waiting at his office shortly before 7:00 a.m. Monday morning. Claimant told Hutt
that he had been verbally abused and threatened the previous Friday and did not
feel comfortable returning to the job. Hutt testified that he told Claimant he would
contact Employer.
             Hutt testified that he called Scheuren, informed him that another
employee had threatened Claimant, and asked if Scheuren could resolve the
situation. Scheuren initially indicated that he was not aware of the problem. Hutt
stated that after Scheuren looked into it, he told Hutt that Employer had no work
for Claimant. Hutt understood that Claimant was laid off.
             Hutt said that Claimant appeared visibly shaken. He added that he
had worked with Claimant for a long time and believed him. Hutt stated that
Claimant was working with someone who was operating a large piece of


                                          4
equipment, felt threatened, and did the right thing by going to the Union. Hutt
further testified that he kept a daily log. He read his notes from August 13, 2018,
which were consistent with the details of his testimony, into evidence. R.R. at 89a.
             Scheuren testified that Supervisor called him Monday morning to
advise that Claimant had not come to work. Scheuren said that when Hutt called
him at 7:40 a.m., he related that Claimant had a “verbal spat” with another
employee. R.R. at 91a. Scheuren spoke with Snyder the following day. Snyder
acknowledged that he had a disagreement with Claimant but told Scheuren he was
“over it.” R.R. at 94a.
             According to Scheuren, Hutt insisted that Claimant be laid off because
Claimant no longer wanted to work at the job site. When asked whether Hutt
referenced anything more than a “verbal spat,” Scheuren responded that he did not
want to hear the details from Hutt, he wanted to hear the details from Claimant,
who would not call him. R.R. at 93a. Scheuren acknowledged that Hutt said
Claimant felt uncomfortable returning to the work site due to the incident. R.R. at
95a. Asked if he understood Hutt to say that assigning Claimant to another job site
might resolve the situation, Scheuren replied that Claimant should “grow a pair.”
Id. Scheuren explained that Claimant should have come to him or Supervisor
instead of going to his Union to get the matter resolved. Scheuren said that he had
no other work for Claimant and told Hutt that if Claimant elected not to return to
the work site, Scheuren would assume Claimant quit. R.R. at 96a.
             The referee affirmed the job center’s determination that Claimant was
ineligible for benefits under Section 402(b). The referee found that Claimant’s
failure to report the incident directly to Employer deprived Employer of notice and
an opportunity to respond to the situation. Claimant appealed to the Board, which


                                         5
adopted and incorporated the referee’s findings and conclusions, modifying
Findings of Fact (F.F.) Nos. 6 and 10, and adding F.F. No. 15.3
             The Board found:

             1. [Claimant] worked full time as a laborer beginning in
             September 2017 until his last day worked on August 10,
             2018, at a final rate of pay of $29.05 per hour.

             2. On August 10, 2018, at the end of the day, [Claimant]
             asked the equipment operator why the operator would not
             level a portion of the ground which [Claimant] had
             earlier pointed out needed to be “scraped off.”

             3. The equipment operator allegedly “went off” on
             [Claimant], using profanity and threatening language.

             4. [Claimant] felt threatened by the behavior.

             5. [Claimant] was in his truck, deciding what he wanted
             to do regarding the incident.

             6. The supervisor gave [Claimant] his check.

             7. [Claimant] did not inform the supervisor of the
             situation.

             8. On August 13, 2016, [Claimant] went to the Union
             office and reported the incident to [Hutt, his Union
             representative).

             9. [Hutt] called [Employer].

             10. [Hutt] did not inform [Employer] the equipment
             operator made threatening remarks.



      3
          In unemployment cases, the Board is the factfinder, empowered to determine the
credibility of witnesses and resolve conflicts in evidence.     Curran v. Unemployment
Compensation Board of Review, 752 A.2d 938, 940 (Pa. Cmwlth. 2000).


                                            6
               11. [Employer] was informed [by Hutt] there was a
               “verbal spat” [between Claimant and the equipment
               operator].

               12. [Claimant] did not inform [Employer] of the incident.

               13. [Claimant] voluntarily terminated his employment
               when he failed to return to the job site.

               14. [Claimant] did not inform [Employer] of the incident
               and behavior of the co-worker.

               15. Claimant voluntarily quit his employment through
               job abandonment connected with issues he was having
               with another employee.
Board’s 4/23/2019 decision, F.F. Nos. 1-15. The Board reasoned:

               [A]n employee who leaves the worksite without
               informing his employer when he is planning to return
               may be held to have voluntarily quit. [Claimant]
               voluntarily quit, not only because he failed to return to
               work, but because he never contacted [Employer] about
               the issue and did not inform [Employer] when he was
               planning to return. Furthermore, [Employer’s] witness
               credibly testified that [Hutt] told him that [Claimant] “no
               longer wanted to work at that job site . . . .” The Board
               resolves all conflict in testimony in favor of [Employer].
Board’s 4/23/2019 decision at 1 (emphasis added). Claimant now petitions this
Court for review.4

       4
          Our scope of review is limited to determining whether constitutional rights were
violated, whether an error of law was committed, or whether necessary findings of fact are
supported by substantial evidence. Rodriguez v. Unemployment Compensation Board of Review,
174 A.3d 1158, n.5 (Pa. Cmwlth. 2017). “Substantial evidence is such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Guthrie v. Unemployment
Compensation Board of Review, 738 A.2d 518, 521 (Pa. Cmwlth. 1999). We view the record in
the light most favorable to the party prevailing before the Board and afford that party the benefit
of all reasonable inferences that can be drawn from the record to determine if substantial
evidence exists. Big Mountain Imaging v. Unemployment Compensation Board of Review, 48
A.3d 492, 494-95 (Pa. Cmwlth. 2012).


                                                7
                                   Discussion
            Under Section 402(b) of the Law, a person is ineligible for
unemployment benefits if he voluntarily terminates his employment without cause
of a necessitous and compelling nature.         A claimant bears the burden to
demonstrate necessitous and compelling cause.         Mathis v. Unemployment
Compensation Board of Review, 64 A.3d 293, 299 (Pa. Cmwlth. 2013). We have
explained that necessitous and compelling cause “results from circumstances
which produce pressure to terminate employment that is both real and substantial,
and which would compel a reasonable person under the same circumstances to act
in the same manner.”        Philadelphia Parking Authority v. Unemployment
Compensation Board of Review, 654 A.2d 280, 282 (Pa. Cmwlth. 1995) (quoting
Taylor v. Unemployment Compensation Board of Review, 378 A.2d 829, 832-33
(Pa. 1977)). Additionally, a claimant must take all reasonable and necessary steps
to maintain his employment, including giving sufficient notice to the employer.
Nolan v. Unemployment Compensation Board of Review, 797 A.2d 1042, 1046-47
(Pa. Cmwlth. 2002).
            Claimant first challenges the Board’s finding that he did not inform
Employer that he had been threatened, asserting it is contrary to the record. In
support of this argument, Claimant relies on his testimony and Hutt’s, as well as
Scheuren’s acknowledgment that he was aware of an incident between Snyder and
Claimant.
            Claimant also argues that the Board erred in concluding he failed to
demonstrate necessitous and compelling cause to leave his employment. Claimant
asserts that Snyder’s conduct and threatening language, along with Employer’s




                                        8
indifference to his safety, demonstrate both necessitous and compelling reason to
leave his employment and a need to seek Union representation.
            Employer responds that the Board credited Scheuren’s testimony,
which supports the Board’s findings that Claimant did not report to the worksite
after Friday, August 10, 2018, and did not inform Employer that he had been
threatened or feared for his safety.      Further, Employer emphasizes that an
employee’s burden under Section 402(b) includes notifying the employer of his
reason for leaving and taking affirmative steps to maintain the employment
relationship. Employer asserts that Claimant’s failure to give Employer adequate
notice and an opportunity to address the situation renders Claimant ineligible under
Section 402(b).
            The facts of this case are substantially similar to those in
Unemployment Compensation Board of Review v. Metzger, 368 A.2d 1384 (Pa.
Cmwlth. 1977). The claimant in Metzger could not return to work due to illness
and asked her sister to contact the employer. The parties disputed whether the
sister told the employer of the claimant’s illness. The Board credited testimony of
the employer’s witness and found that the sister did not inform the employer that
illness was the reason for the claimant’s absence. Consequently, the Board held
that the claimant was ineligible for benefits under Section 402(b), and this Court
affirmed.
            Here, as in Metzger, Claimant explained his reason for not reporting
to work to a third party, Hutt, but the Board found that Hutt did not adequately
communicate the reason for Claimant’s absence to Employer. Scheuren’s credible
testimony supports the Board’s finding.




                                          9
              Claimant urges this Court to disregard the Board’s credibility
determinations and reverse the Board’s decision based on Claimant’s preferred
version of the facts. However, as Pennsylvania courts have repeatedly observed,
questions of credibility and evidentiary weight are within the sole discretion of the
Board and are not subject to reevaluation on judicial review. See, e.g., Peak v.
Unemployment Compensation Board of Review, 501 A.2d 1383, 1387 (Pa. 1985);
Mathis, 64 A.3d at 299; Bell v. Unemployment Compensation Board of Review,
921 A.2d 23, 26 n.4 (Pa. Cmwlth. 2007).
              Finally, we address Claimant’s assertion that his report to Hutt, his
Union representative, was sufficient to inform Employer of his reasons for not
returning to the work site. In support, Claimant notes that the Union is his certified
bargaining representative pursuant to the National Labor Relations Act (NLRA),
29 U.S.C. §§151-169. Claimant adds that his right to have a union representative
advocate for safety issues is protected by the NLRA and other federal statutes.
Claimant cites various decisions holding that refusals to work, refusals to accept
job assignments, filings of complaints with safety and health agencies, and
complaints to an employer about safety conditions are protected under the NLRA. 5
Claimant also cites Hyundai America Shipping Agency, Inc., 357 N.L.R.B. 860
(2011), wherein the National Labor Relations Board found that work rules
requiring employees to raise complaints only to immediate supervisors or human
resources interfered with protected rights. Relying on these decisions, Claimant
argues that Employer’s requirement that Claimant communicate his safety



       5
         See, e.g., National Labor Relations Board v. City Disposal Sys., Inc., 465 U.S. 822
(1984); Leslie Metal Arts Co., 208 N.L.R.B. 323 (1974), enforced, 509 F.2d 811 (6th Cir. 1975).


                                              10
concerns directly to Employer instead of the Union is a direct violation of the
representational rights afforded under the NLRA.
             Relying on Monaco v. Commonwealth, 565 A.2d 127 (Pa. 1989),
Employer counters that an employee does not have the right to be absent from
work to confer with a union representative. In Monaco, our Supreme Court held
that employees who left work without permission in order to consult with a union
representative had voluntarily quit their employment. Id. at 130.
             Both parties’ arguments miss the mark. Employer did not prohibit
Claimant from making reports to the Union or conferring with his Union
representative, or otherwise interfere with Claimant’s right to representation.
Additionally, Claimant is not asserting a right to take off work to consult with a
union representative. Simply, Claimant’s protected rights to representation are not
implicated in this appeal.
             In sum, we conclude that the Board’s findings are supported by
substantial evidence and its decision is in accordance with the Law. Accordingly,
we affirm.




                                      MICHAEL H. WOJCIK, Judge




                                        11
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Christopher J. Powers,         :
                               :
                    Petitioner :
                               :
            v.                 : No. 773 C.D. 2019
                               :
Unemployment Compensation      :
Board of Review,               :
                               :
                    Respondent :



                              ORDER


            AND NOW, this 10th day of July, 2020, the order of the
Unemployment Compensation Board of Review, dated April 23, 2019, is
AFFIRMED.




                                __________________________________
                                MICHAEL H. WOJCIK, Judge
