Quinn, Gent, Buseck & Leemhuis, Inc. v. Unemployment Compensation Board of Review

*151DOYLE, Judge,

dissenting.

With due respect to the majority’s view, I believe the majority has inverted the burden of proof in this case and labors through an analysis for a solution from an erroneous premise.

Contrary to the view of the majority, the essential question here is whether, after an employer’s substantial unilateral change in an employee’s working conditions, the employer must offer a suitable alternative in the form of a reasonable accommodation to that employee. It is, of course, a basic principle of unemployment law that a “claimant can meet his burden of proving a necessitous and compelling reason for terminating his employment by showing that the employment conditions changed or that he was reasonably unaware of the unsuitable conditions when he accepted the employment.” Shingles v. Unemployment Compensation Board of Review, 99 Pa.Commonwealth Ct. 417, 513 A.2d 575 (1986); Naylon v. Unemployment Compensation Board of Review, 83 Pa.Commonwealth Ct. 502, 477 A.2d 912 (1984). And, in this case, the Board made the specific finding that the law firm of Quinn, Gent, Buseck and Leemhuis, Inc. (Employer) did make a “substantial unilateral change in the claimant’s working conditions which rendered her job unsuitable and presented her with a necessitous and compelling cause to resign.” The Claimant, Margaret L. Sinclair, therefore, met her burden. At that juncture, the burden shifted to the Employer and as the Board further found, the Employer failed to meet its burden. In fact, the law firm never even attempted to show that it met that burden; it simply pontificated that from henceforth there would be no smoking anywhere in its building, without offering any reasons for the change.

The analysis must begin with the testimony of the Claimant and whether her testimony amounted to substantial evidence to support the finding of the Board that Employer’s providing a separate room in which its employees could smoke was a condition of employment. The Claimant’s *152full testimony, without the excisions made by the majority, is as follows:

QR: Why is a smoking band [sic] cause for you to leave your job?
AC: Because at my age, I sure as hell am not going to go outside and smoke in the winter time in Erie. And all I asked for was a designated area. When I was hired, I was a smoker and they knew it and I had an office where I could smoke and even when the city put their band [sic] on, and they said that they were going to be no smoking, then, some of the other people who smoked, sort of gone on the bandwagon and they finally gave us a smoking room. And that’s all I requested when ... when this smoking thing came up, just a designated area. Whether I smoked at my desk or not, it was irrelevant, because I could of, you know, smoked on my breaks or I can go outside and do it. (Emphasis added.)

Whether the Claimant’s smoking was a condition of employment was bluntly contradicted by the Employer’s witness; thus:

AEL: Now, Mr ... Mr. McAndrew, just a few other questions. At the time, or were you the firm administrator at the time Peg Sinclair was hired?
AEW1: Yes, I was.
QEL: And was ... was there any condition of employment of Peg Sinclair?
AEW1: No.

The transcript of testimony further reveals that, in concluding the referee’s hearing, the Employer’s counsel argued:

AEL: The only legal argument that I would make, Mr. Referee, is that the evidence indicates that there was not a term or condition of employment made that Peg Sinclair ...
AC: What makes you think that I ...
QR: Do not interrupt, please.
*153AEL: That it was not a condition of ... of Peg’s hire that she be permitted to smoke, that the smoking policy was implemented that the employees were notified of that and Peg Sinclair voluntarily submitted her resignation immediately without even experiencing the policy or finding how it would affect her. And I think that that’s a voluntary quit without a necessitous and compelling reason for which benefits should be denied.
QR: Very well. Ms. Sinclair, anything further before the record is closed?
AC: Well, I refute that statement that, when I asked him in the beginning if I could smoke, the answer was yes. So, I took the job. (Emphasis added.)

On the basis of such testimony, the Board made a credibility determination and made the specific finding:

4. The claimant, age 65, has been a habitual smoker all of her adult life and before she accepted the above-mentioned job she established that she would be permitted to smoke on the employer’s premises. (Emphasis added.)

The Board then concluded in its discussion:

The Board agrees with the rationale of the Referee and takes notice of the fact that in recent years there has been a marked decline in the social and cultural acceptability of smoking and that it has become much more common for employers to place restrictions upon their employees right to smoke. Here, however, the employer has totally banned smoking on its premises and failed to make any reasonable accommodations for those employees who smoked. The employer provided no designated area within the building for the employees to smoke. (Emphasis deleted.) As noted by the Referee, the employer here has not attempted to show that there are any unusual circumstances which prompted the smoking ban. Rather, it appears to be merely a matter of personal preference on the part of certain senior members of the management of the company. Under the *154facts of this case, the Board holds that the smoking ban constituted a substantial unilateral change in the claimant’s working conditions which rendered her job unsuitable and presented her with necessitous and compelling cause to resign. Accordingly, she is deemed eligible for benefits under the provisions of Section 402(b) of the Law. (Emphasis added.)

Keeping in mind that our duty is “to examine the testimony in the light most favorable to the party in whose favor the Board has found, giving the 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,” Taylor v. Unemployment Compensation Board of Review, 474 Pa. 351, 355, 378 A.2d 829, 831 (1977), I must conclude that the Claimant’s evidence as quoted above is sufficient and substantial evidence to demonstrate a condition of employment. The fact that the Employer’s witness testified to the contrary is, of course, of no moment as credibility matters are within the Board’s province. Bowman v. Unemployment Compensation Board of Review, 49 Pa.Commonwealth Ct. 170, 410 A.2d 422 (1980).

Having established the existence of a condition of employment, the next inquiry is whether the change in that condition was reasonable and implemented in good faith. See Monaco v. Unemployment Compensation Board of Review, 523 Pa. 41, 565 A.2d 127 (1989). In light of the growing recognition in medical circles of the dangers of smoking to both smokers and those in their immediate presence, an employer’s decision to curtail the locales where employees can smoke may be generally reasonable, see Lapham v. Unemployment Compensation Board of Review, 103 Pa.Commonwealth Ct. 144, 519 A.2d 1101, petition for allowance of appeal denied, 515 Pa. 611, 529 A.2d 1084 (1987); but, on the specific facts of this case, the curtailment implemented was not reasonable and the Board so found. Expecting employees, especially older ones, to venture outside in Erie, Pennsylvania during severe winter *155weather in order to smoke is, in my view, unreasonable. No explanation was ever offered by the Employer regarding why it chose to eliminate the area smoking room. What Monaco allows is a reasonable change to be made, much like what Genetin v. Unemployment Compensation Board of Review, 499 Pa. 125, 451 A.2d 1353 (1982), a medical quit case, permits is a reasonable medical accommodation to be made. Here, the Employer made no accommodation whatsoever.

Finally, I would note that the majority relies for support on Section 10.1(g) of the Act of April 27, 1927, P.L. 465, as amended, 35 P.S. § 1230.1(g).1 That provision pertinently provides:

[EJmployers shall develop, post and implement a policy to regulate smoking in the workplace, provided that nothing in this section or any local law, rule or regulation shall be construed as to impair or diminish or otherwise affect any contractual agreement, collective bargaining agreement, collective bargaining rights or collective bargaining procedures. The employer shall provide a copy of the policy to any employe upon request.

While there was no assertion of the existence of a formal written contract agreement here, the Board found and the record supports the finding that the right to smoke somewhere on the premises was a condition of the Claimant’s employment, in essence an unwritten contractual agreement. Accordingly, I therefore believe that the Clean Indoor Air Act, on the facts of this case, lends no support to the majority’s position.

The referee and Board in their decisions wisely avoided injecting into the case personal or public policy considerations regarding the evils and adverse health considerations of smoking. Quinn, Gent, Buseck and Leemhuis, Inc. never offered as a reason for its no smoking policy health considerations generally nor the health concerns of its other *156employees, or even consideration for its nonsmoking clients. The only evidence offered by the Employer, through the testimony of the firm’s administrator, was that demonstrating that the Employer merely informed the Claimant that the firm was not going to provide a smoking room in its new facility; that its executive committee had met and decided the issue; and that “it was not going to change the policy.” The reason behind that decision might well have been its unwillingness to provide an employee “perk” because it would cost the firm money in its new accommodations.

The majority opinion (p. 150) in quoting from this Court’s opinion in Lapham, references the New Jersey Superior Court2 opinion of Shimp v. New Jersey Bell Telephone Co., 145 N.J.Super. 516, 368 A.2d 408 (1976), wherein that court “took judicial notice of the toxic nature of cigarette smoke and its well-known association with emphysema, lung cancer and heart disease____” I note in passing that since Skimp was decided in 1976, the New Jersey Legislature has twice considered a smokers bill of rights providing that “No employer shall refuse to hire ... discharge from employment or take any adverse action against any employee with respect to compensation, terms, conditions or other privileges of employment because that person smokes or uses other tobacco products, unless the employer has a rational basis for doing so which is reasonably related to the employment____” Such broad determinations of public policy, of the deleterious effect of smoking on the one hand and an individual’s right to smoke on the other, belong with the legislatures and with the administrative agencies that set policy, not with the courts.

I would, accordingly, affirm the Board and grant benefits to this Claimant.

McGINLEY, J., joins in this dissent.

. Section 10.1 was added by Section 2 of the Act of December 21, 1988, P.L. 1315. This amendment is often referred to as the Pennsylvania Clean Indoor Air Act.

. The New Jersey Superior Court is a trial court, not an appellate court.