Morgan v. Unemployment Compensation Board of Review

DISSENTING OPINION BY

Judge LEAVITT.

Respectfully, I dissent. I believe that Claimant established a substantial and unilateral change in the terms of his employment that constituted a necessitous and compelling reason for his resignation. Employer’s elimination of a valuable fringe benefit, unilaterally and without any advance warning, reduced Claimant’s compensation by approximately 50%. That the fringe benefit was cost-free transportation to the workplace matters not to the question of whether it was a form of compensation.

Claimant began working for Employer on October 18, 2010, as a foreman. In addition to his hourly wage of $22.00, Employer provided him round trip transportation from his home to the work site, a trip of approximately 140 miles. • Without this benefit, his cost of commuting would have *190been $90 per day.1 Initially, Employer’s executive vice president, John Ross, drove Claimant to and from work each day. Thereafter, Employer purchased a used pickup truck for Claimant; paid for the fuel; and provided him a Pennsylvania Turnpike EZ Pass. In August of 2012, Employer changed ownership, but it continued Claimant’s employment on the same terms, including the payment of Claimant’s commuting costs.

On March 28, 2013, Claimant reported to work and was instructed to return the company truck, that day. Employer also advised him that it would no longer reimburse him for fuel and tolls for commuting. Employer’s general manager informed Claimant that John Ross would give him a ride home that day, after which he would have to arrange for his own transportation, which would no longer be “on the company dime.” Notes of Testimony, May 24, 2013, at 21 (N.T. —). Claimant earned $176 per day. Eliminating a benefit worth $90 per day reduced Claimant’s compensation to half of what he earned on March 27, 2013, the last day he enjoyed this benefit. Claimant resigned.

The Referee held that Claimant was ineligible for benefits under Section 402(b) of the Unemployment Compensation Law (Law), 43 P.S. § 802(b),2 because he quit without cause of a necessitous and compelling nature. Claimant appealed and the Board affirmed. In doing so, the Board rejected Claimant’s argument that Employer’s action effected a unilateral reduction in his compensation, holding that Claimant quit “because he did not have affordable transportation.” Board Adjudication at 3.3

On appeal, Claimant first challenges Finding of Fact No. 7, which states:

The employer suggested that the claimant reconsider his decision to resign and informed him that he could commute with the employer’s director of processing.

Board Adjudication at 2. Claimant asserts this factual finding is not supported by substantial evidence. The relevant testimony was as follows:

And I told him you don’t have to resign, John Ross can give you a ride home, you can, you can figure out something else, but you’re just not going to do it on the company dime anymore.

N.T. 21. I agree that this testimony does not support Finding of Fact No. 7. Employer simply arranged a ride home for Claimant for that day when he was deprived of the means to return home.4 After that, Claimant had to “figure out something else” without any financial support from Employer.

Claimant also argues that the Board erred in analyzing this case as one con*191cerning transportation availability rather than a substantial and unilateral change in terms of employment, i.e., a reduction in compensation. I agree. Claimant has never contended that he lacked a mode of transportation; he acknowledged that he owns two cars. Claimant’s theory of the case from its inception was that a 50% reduction in his compensation left him with no choice but to quit. See Certified Record, Item No. 4, Employment Separation Questionnaire. Claimant testified that because he lost his company vehicle, he could not afford to drive to work. N.T. 5. Claimant’s attorney emphasized throughout the hearing that the issue in the case was compensation, not transportation. N.T. 11, 18, 22-23. Availability of transportation and cases addressing that subject are simply inapposite to the case sub judice.5

Finally, Claimant argues that the Board erred in holding that he lacked a necessitous and compelling reason to resign. Again, I agree with Claimant.

A substantial reduction in pay constitutes a necessitous and compelling reason to leave employment and, thus, does not affect eligibility for unemployment compensation. A-Positive Electric v. Unemployment Compensation Board of Review, 654 A.2d 299, 302 (Pa.Cmwlth.1995). “[Wjhere an employee benefit has special significance and intrinsic value to a claimant, an employer’s unilateral alteration of that benefit and corresponding reduction in compensation gives a claimant necessitous and compelling cause for terminating employment.” Id. Because there is “no talismanic percentage” for determining a substantial reduction, each case turns on its own circumstances. Id.

In Steinberg Vision Associates v. Unemployment Compensation Board of Review, 154 Pa.Cmwlth. 486, 624 A.2d 237, 238-39 (1993), six years after the claimant was hired, the employer notified her that it would no longer reimburse her health insurance premium of $235.16 per month. The loss of this reimbursement effected “a 14.2% reduction in earned compensation.” Id. at 240. We held that “the [e]mployer’s unilateral alteration of that benefit and corresponding reduction in compensation” constituted a necessitous and compelling reason to quit. Id. See also Chavez (Token) v. Unemployment Compensation Board of Review, 738 A.2d 77, 82 (Pa.Cmwlth.1999); A-Positive, 654 A.2d at 302-03.

In this case, from the time of his initial hire in 2010 and throughout his employ*192ment Employer assumed the cost of Claimant’s commute. Claimant’s evidence established that the value of the Employer-provided vehicle, and reimbursement of fuel and tolls was approximately $90 per day. N.T. 6, 13. Employer did not contest this figure. Claimant established that his gross salary at the time of his separation was $176 per eight-hour day. Certified Record, Item No. 3 (Employer’s Notice of Application). On March 28, 2013, Employer unilaterally eliminated Claimant’s commuting benefit without warning. Employer offered no evidence that the loss of Claimant’s benefit was negotiable or capable of revision.

Claimant was not obligated to continue working under Employer’s new terms. It is true, as the majority notes, that a claimant seeking to establish a necessitous and compelling reason for quitting must demonstrate, inter alia, that he made a reasonable effort to preserve his employment. Brunswick Hotel & Conference Center, LLC v. Unemployment Compensation Board of Review, 906 A.2d 657, 660 (Pa.Cmwlth.2006). However, a unilateral reduction in compensation in and of itself provides a necessitous and compelling reason for quitting, if the reduction is substantial. See, e.g., Steinberg Vision Associates, 154 Pa.Cmwlth. 486, 624 A.2d 237; Morysville Body Works, Inc. v. Unemployment Compensation Board of Review, 59 Pa.Cmwlth. 486, 430 A.2d 376 (1981) (salary reduction of 25%); Ship Inn, Inc. v. Unemployment Compensation Board of Review, 50 Pa.Cmwlth. 292, 412 A.2d 913 (1980) (claimant’s $67.80 weekly salary reduced by $15). In these cases, this Court held that the claimants’ salary reductions were substantial and provided a necessitous and compelling cause to immediately quit. Claimant’s 50% reduction in compensation in the present case should compel the same result.

For these reasons, I would hold that Claimant satisfied his burden of proving a necessitous and compelling cause under Section 402(b) of the Law, 43 P.S. § 802(b), and would reverse.

President Judge PELLEGRINI joins in this dissent.

. Using cost data from the American Automobile Association, Claimant calculated his commuting cost to be 60.8 cents per mile, or $85.12 per day plus turnpike tolls.

. Act of December 5, 1936, Second Ex.Sess., P.L. (1937) 2897, as amended. 43 P.S. § 802(b).

. Claimant challenged this reasoning of the Board, but it is irrelevant. The Board placed undue emphasis on Claimant's statement at the hearing that he lacked affordable transportation. Employer’s reduction in compensation left Claimant unable to afford many things, including transportation. _ Claimant’s statement does not conflict with his argument that his 50% drop in compensation gave him a necessitous and compelling reason to resign.

.It cannot be reasonably inferred that John Ross would give him a ride home every day or that John Ross would do so gratis. Even if that were the point of the testimony, Claimant had to figure out a way to get to work before Ross could drive him home.

. Transportation cases typically address whether a change in an employee’s commute constitutes a necessitous and compelling reason to resign. Often it does. For example, in Love v. Unemployment Compensation Board of Review, 103 Pa.Cmwlth. 247, 520 A.2d 107 (1987), the claimant resigned after her employer transferred her to a new facility. The claimant, who did not drive, established that she would have to commute approximately three hours daily via public transportation to the new location. In allowing benefits, this Court reiterated that, traditionally, we have "balanced the increased traveling time and distance requirements against the compensation level and requirements of the job in question in determining whether transportation difficulties are ‘virtually insurmountable.’ ” Id. at 109 (quoting J.C. Penney, Co. v. Unemployment Compensation Board of Review, 72 Pa.Cmwlth. 445, 457 A.2d 161 (1983)). We concluded that the claimant had a necessitous and compelling reason to quit by reason of her employer increasing her commuting time to a half work-day. Similarly, in J.C. Penney, this Court affirmed the Board’s finding that employer's relocation to a site sixteen miles farther away created an excessive commuting distance for a group of employees in light of their $3.07 hourly wage.

This case is not a transportation case that arose from a change in the distance of an employee’s commute. Claimant’s commute did not change. The only change in his employment was in the revocation of his employment benefit, i.e., employer-paid commuting.