Roberts v. Unemployment Compensation Board of Review

CONCURRING OPINION BY

Senior Judge FRIEDMAN.

I concur in the result reached by the majority. I write separately simply to provide a different analysis of the matter before this court.

Alexander W. Roberts (Claimant) violated a work rule requiring him to provide “close reach supervision” as of 7:00 a.m. each day for a “one-to-one client” with behavioral issues when, on May 9, 2008, at 8:00 a.m., Claimant left the client unattended to go to the kitchen. Woods Services (Employer) discharged Claimant as a result of the incident, and Claimant applied for unemployment compensation (UC) benefits. His application was denied pursuant to section 402(e) of the Unemployment Compensation Law (Law),1 and Claimant filed an appeal.

After a hearing on the matter, the referee found that Claimant believed it was permissible for him to go to the kitchen at 8:00 a.m. to get breakfast for the client because the client was in bed and because the client did not need special supervision prior to 7:00 a.m. (Referee’s Findings of Fact, Nos. 4-5.) Based on this finding of fact, the referee concluded that Claimant’s violation of the work rule was reasonable and, thus, did not rise to the level of willful misconduct. Employer filed an appeal with the Board, which reversed. Unlike the referee, the Board concluded that the work rule violation was not justified.2 Claimant now petitions this court for review.

An employer bears the initial burden of proving that a claimant violated a work rule. Department of Corrections v. Unemployment Compensation Board of Review, 943 A.2d 1011 (Pa.Cmwlth.2008). Once the employer meets its burden, a claimant may then prove that he had good cause for his actions. Id. Good cause is established where the action of the employee is justifiable or reasonable under the circumstances. Id.

The Board found that the client in this case required special supervision because of “behavioral concerns.” (Board’s Findings of Fact, No. 2.) The referee asked Claimant about the client’s behavioral is*19sues, and Claimant explained that: (1) the client needed special supervision because, when the client was in a wheelchair, the client was able to move around and was aggressive towards others; and (2) the client did not need such supervision before Claimant arrived for work at 7:00 a.m. because the client was in bed, not in a wheelchair. (N.T. at 8.) Inasmuch as the client required special supervision when he was in a wheelchair and did not require special supervision when he was in bed, Claimant reasonably believed he could go to the kitchen at 8:00 a.m., while the client was in bed, to get breakfast for the client.3

Accordingly, like the majority, I would reverse.

. Act of December 5, 1936, Second Ex.Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e). Under section 402(e) of the Law, an employee is ineligible for UC benefits for any week in which the employee’s unemployment is due to his or her discharge from work for willful misconduct connected with the work.

. The Board stated that it ''discredited” Claimant's testimony that his violation of the work rule was justified. (Board op. at 2-3.) However, the question as to whether Claimant’s violation of the work rule was justified is not a credibility determination; it is a question of law. Department of Corrections v. Unemployment Compensation Board of Review, 943 A.2d 1011 (Pa.Cmwlth.2008).

. I also submit that, to the extent the work rule ignores the reasons for requiring special supervision of a client, focusing solely on hours of the day rather than the client's circumstances, the work rule is unreasonable.