IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Raymond J. Kertesz,            :
                               :
                    Petitioner :
                               :
                 v.            : No. 1450 C.D. 2017
                               : Submitted: June 7, 2018
Unemployment Compensation      :
Board of Review,               :
                               :
                    Respondent :


BEFORE:         HONORABLE P. KEVIN BROBSON, Judge
                HONORABLE MICHAEL H. WOJCIK, Judge
                HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE WOJCIK                                                FILED: June 28, 2018

                Raymond J. Kertesz (Claimant) petitions for review from the order of
the Unemployment Compensation Board of Review (Board) that determined that he
was ineligible for unemployment compensation (UC) benefits pursuant to Section
402(e) of the Unemployment Compensation Law (Law)1 (relating to willful
misconduct). Claimant challenges the Board’s findings, credibility determinations
and evidentiary ruling. Upon review, we affirm.

                                      I. Background
                Claimant worked for Tobias Associates, Inc. (Employer) as a senior
field service engineer from October 2002, until his last day of work on January 20,

       1
           Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§802(e).
2017. After his separation from employment, Claimant applied for UC benefits,
which a local service center denied. Claimant appealed, and a referee held a hearing.
             At the hearing, the referee heard testimony and received evidence from
Claimant, who was represented by counsel; Eric Tobias, Employer’s Representative;
and John Finley, Employer’s Customer Service Supervisor (Supervisor). Based on
the testimony and other evidence presented, the referee found that Claimant refused
to comply with Employer’s directive to make a network cable, without justification.
The referee concluded that Claimant’s insubordinate behavior constituted willful
misconduct rendering him ineligible for UC benefits under Section 402(e) of the
Law. The referee denied Claimant’s request to keep the record open after the hearing
to produce evidence regarding the customer’s expectations concerning the network
cable. Claimant appealed.
             The Board, based on the record created at the referee’s hearing, found
the following facts. Employer installs network computer systems for its customers.
Employer has the resources to make network cables and manufactures handmade
network cables on a regular basis. On January 19, 2017, Supervisor directed
Claimant to make a handmade network cable. Supervisor needed the network cable
for a service call to a customer scheduled for January 23, 2017. Claimant yelled at
Supervisor that if Supervisor had told him about needing the cable before that date,
Claimant could have bought one rather than making one. Supervisor told Claimant
that he did not want to buy a cable because Employer had the resources to make
good network cables. Claimant complained that it would take him three hours to
make a network cable, at which time Supervisor raised his voice and replied, “I don’t
care, I want you to make the cable.” Claimant shouted at Supervisor: “Poor planning
on your part does not make it an emergency on my part.” Supervisor warned


                                         2
Claimant that he was in danger of being fired, and Claimant yelled that Supervisor
was threatening him. Claimant then retreated to his office. Supervisor waited five
minutes and then went into Claimant’s office to further discuss the directive.
Claimant yelled at Supervisor to get out of his office and then left the premises, after
telling the human resources representative that he was leaving and using personal
leave time. The next day, Claimant returned to work and was discharged for
insubordination. Claimant never informed Employer that he believed Employer was
incapable of producing a good quality network cable for the customer due to faulty
equipment. Board Opinion, 9/19/17, Findings of Fact (F.F.) Nos. 2-14.
             The Board found the testimony of Supervisor credible and that his
directive to Claimant to make the cable was reasonable. Although Claimant testified
that Employer did not have adequate equipment for him to produce a good quality
network cable for the customer, the Board did not find this testimony credible. The
Board explained that Claimant never complained to Employer that he was incapable
of producing a good quality network cable due to faulty equipment. Rather,
Claimant only complained that it would take him three hours to build the cable.
Claimant was unwilling to further discuss the directive or comply with it.
Ultimately, the Board concluded that Claimant refused to comply with a reasonable
directive without good cause.
             The Board also concluded that the referee afforded Claimant a full and
fair hearing and did not act improperly in denying Claimant’s request to keep the
record open after the hearing. The Board found that any evidence about the
customer’s expectations in regards to the network cable was irrelevant. The issue
was whether Claimant’s refusal of Employer’s directive to manufacture a network
cable constituted willful misconduct. Thus, the Board determined Claimant was


                                           3
ineligible for benefits under Section 402(e) of the Law. Claimant’s petition for
review to this Court followed.2

                                          II. Issues
              Claimant contends that the Board erred or abused its discretion in
denying him UC benefits. Claimant asserts that he was fired for voicing his concerns
regarding an inferior cable, which does not constitute willful misconduct. Claimant
challenges the Board’s credibility determinations because the Board never heard or
observed the testimony.         Claimant also challenges the Board’s findings as
unsupported by substantial evidence. Specifically, Claimant contests the Board’s
findings that: the customer’s expectations were irrelevant; Supervisor’s directive to
make the cable was reasonable; Claimant never complained to Employer about the
inferior quality of a handmade cable; Claimant was unwilling to further discuss or
comply with the directive; and, Claimant’s actions were not justified or reasonable
under the circumstances. Finally, Claimant argues that the Board erred in upholding
the referee’s refusal to allow Claimant to present evidence regarding the customer’s
actual expectations on the basis that such evidence is irrelevant.

                                      III. Discussion
              Section 402(e) of the Law provides, “[a]n employe shall be ineligible
for compensation for any week . . . [i]n which his unemployment is due to his
discharge . . . from work for willful misconduct connected with his work . . . .”
43 P.S. §802(e). “[W]illful misconduct is defined by the courts as: (1) wanton and
willful disregard of an employer’s interests; (2) deliberate violation of rules; (3)

       2
         Our review is limited to determining whether necessary findings of fact were supported
by substantial evidence, whether errors of law were committed, or whether constitutional rights
were violated. 2 Pa. C.S. §704; Johns v. Unemployment Compensation Board of Review, 87 A.3d
1006 (Pa. Cmwlth.), appeal denied, 97 A.3d 746 (Pa. 2014).
                                              4
disregard of the standards of behavior which an employer can rightfully expect from
an employee; or, (4) negligence showing an intentional disregard of the employer’s
interests or the employee’s duties and obligations.”       Johns v. Unemployment
Compensation Board of Review, 87 A.3d 1006, 1009 (Pa. Cmwlth.), appeal denied,
97 A.3d 746 (Pa. 2014) (citing Grieb v. Unemployment Compensation Board of
Review, 827 A.2d 422 (Pa. 2002)).
             The employer bears the initial burden of proving a claimant engaged in
willful misconduct. Johns, 87 A.3d at 1009. When asserting a discharge based on
a violation of a work rule, an employer must establish the existence of the rule, the
reasonableness of the rule, the claimant’s knowledge of the rule, and its violation.
Id. (citing Ductmate Industries, Inc. v. Unemployment Compensation Board of
Review, 949 A.2d 338, 344 (Pa. Cmwlth. 2008)). A determination of whether an
employee’s actions amount to willful misconduct requires a consideration of “all of
the circumstances, including the reasons for the employee’s noncompliance with the
employer’s policy or directives.” Navickas v. Unemployment Compensation Board
of Review, 787 A.2d 284, 288 (Pa. 2001) (quoting Rebel v. Unemployment
Compensation Board of Review, 723 A.2d 156, 158 (Pa. 1998)).
             Once an employer meets its burden, the burden shifts to the employee
to prove good cause for his actions. Johns, 87 A.3d at 1010. An employee
establishes good cause where his actions are justified or reasonable under the
circumstances. Docherty v. Unemployment Compensation Board of Review, 898
A.2d 1205, 1208-09 (Pa. Cmwlth. 2006). “‘Good cause’ has been described as
requiring a ‘balanc[ing of] the reasonableness of the supervisor’s directive against
the reasonableness of [the claimant’s] refusal.’”      Connelly v. Unemployment
Compensation Board of Review, 450 A.2d 245, 246 (Pa. Cmwlth. 1982) (quoting


                                         5
Patterson v. Unemployment Compensation Board of Review, 430 A.2d 1011, 1014
(Pa. Cmwlth. 1981)).
             Further, in UC cases, the Board is the ultimate fact-finder and is
empowered to resolve all issues of witness credibility, conflicting evidence and
evidentiary weight. Ductmate, 949 A.2d at 342. It is irrelevant whether the record
contains evidence that would support findings other than those made by the Board;
the proper inquiry is whether the evidence supports the findings actually made. Id.
Additionally, the party prevailing below is entitled to the benefit of all reasonable
inferences drawn from the evidence. Id.
             Here, Claimant argues that the Board’s findings are not supported by
substantial evidence. Specifically, Claimant challenges the Board’s finding that
Claimant never informed Employer that he believed Employer was incapable of
producing a good quality network cable for the customer. F.F. No. 14. Claimant
also contends Employer’s request to make the cable, given Claimant’s inferiority
concerns, was unreasonable.
             The Board’s findings are supported by Supervisor’s testimony that
Claimant only objected to the amount of time it would take to make the cable, not
the quality of the cable. Specifically, Supervisor testified:

             I asked [Claimant] if he could make a network cable for
             me at which point [Claimant] started yelling at me. He
             says why didn’t I tell him before? He would’ve gone out
             and bought one. I told him I did not want it purchased. I
             wanted to make it ourselves. I feel that we have the ability
             to make very good cables and we’ve done it for years. At
             which point [Claimant] started yelling even more at me
             walking down the corridor and saying that it’ll take me
             three hours to make this cable at which point I told him I
             don’t care, I want you to make the cable. I don’t want you
             to go out and buy one. And then he looked – turned to me
             and shouted at me[:] poor planning on your part does not
                                           6
             make it an emergency on my part. At which point I
             informed [Claimant] that he was close to being fired at that
             point in time, and then he raised his voice even more
             yelling at me that I was threatening him. He then returned
             to his office. I gave him a couple minutes to calm down a
             little bit. When I went into his office to sit down I basically
             went to tell him hey, [Claimant], we need to sit down and
             talk about this. As soon as I said [Claimant] he looks up
             at me and shouts at me to get out of his office. I said but,
             [Claimant], we need, and as soon as I got need out again
             he shouted at me to get out of his office. He then
             proceeded to pack up his things after I left his office and
             then he left the premises.

Certified Record (C.R.), Referee’s Hearing, Notes of Testimony (N.T.), 4/25/17, at
at 16. Supervisor consistently testified that Claimant objected to the directive
because it would take him three hours to make the cable. N.T. at 18, 26. According
to Supervisor, Claimant did not offer any explanation or concerns for why he was
refusing to make the cable. N.T. at 18, 26. Claimant did not make the cable, and
instead left the work site. Supervisor directed another employee to make the cable.
N.T. at 18. Supervisor opined that handmade cables are better than machine-made
cables. N.T. at 22. Although Claimant testified that he tried to explain to Supervisor
that his primary concern was for the quality of the cable, N.T. at 29, the Board
credited Supervisor’s testimony. Supervisor’s testimony is competent evidence to
support the Board’s findings in this regard.
             Claimant also challenges the Board’s conclusion that Claimant
“refused” to make the cable. Claimant contends the Board’s characterization of the
incident as a “refusal” is not supported by the evidence. The credited evidence
shows that Supervisor asked Claimant to make the cable three times, Claimant
protested based on the amount of time that it would take, Claimant shouted at
Supervisor, Supervisor warned Claimant of his conduct, and Claimant yelled again

                                           7
and walked away. N.T. at 16. Supervisor attempted a fourth and last time to discuss
the directive, Claimant told Supervisor to leave his office, left the premises and did
not make the cable. N.T. at 16. Such evidence supports the Board’s conclusion that
Claimant refused Employer’s directive.
             Notwithstanding, Claimant argues that the Board erred in not finding
that he had good cause for his actions. Claimant contends he specifically relied upon
Employer’s express policy and acted in Employer’s best interests by voicing his
concerns regarding the cable. Employer’s handbook provides:

             We are proud of our reputation for high quality and
             customer concern. It is through your efforts that we can
             maintain and expand our position . . . No matter what your
             position in the company, YOU count. We care about you
             and hope that you will learn to care for the company . . . If
             you have any suggestions or complaints please feel free to
             voice them.

C.R., Item No. 9, Claimant’s Exhibit No. 1 (Employee Handbook) (emphasis added).
At the hearing, Employer confirmed that the quality of the work product is very
important and that employees are encouraged to voice their concerns regarding
quality. N.T. at 11-12, 20-21. Claimant testified that there were quality concerns
regarding handmade cables and that he did not believe that making the cable was in
Employer’s best interests. N.T. at 32. Claimant maintains that he voiced his
concerns to Employer. According to Claimant, such constitutes good cause for his
actions.
             However, the Board credited Supervisor’s version of the events over
Claimant’s that such concerns were never voiced. Such credibility determinations
are within the Board’s province and are beyond our review. See Ductmate, 949 A.2d
at 342. Moreover, Claimant’s own testimony does not show that he actually

                                          8
communicated his concerns to Employer. Claimant testified that he “was trying to
explain” and “trying to tell” Supervisor his concern regarding the quality of the cable
and the reputation of the company. N.T. at 29. Even if the Board had credited
Claimant’s testimony, it merely evidences Claimant’s desire or attempt to advise
Employer of his concerns, not that he actually conveyed such concerns. Upon
review, the Board’s findings are supported by substantial evidence and support a
determination of willful misconduct without just cause.
                Finally, insofar as Claimant challenges the referee’s refusal to allow
evidence regarding the customer’s actual expectations, this argument also fails.3
Any proffered evidence regarding the customer’s expectations was irrelevant
because Claimant’s stated objection was based on the time it would take to make the
cable, not the customer’s expectations regarding the quality of the cable. Therefore,
the referee did not abuse her discretion by refusing Claimant’s request to keep the
record open to enter evidence regarding the customer’s expectations.




      3
          As this Court has held:

                Pursuant to 1 Pa. Code §35.231, a petition to re-open for the purpose
                of taking additional evidence must include facts that constitute
                grounds for re-opening the proceeding, including “material changes
                of fact or of law alleged to have occurred since the conclusion of the
                hearing.” Whether to grant or deny a request to re-open the record
                is within the discretion of the presiding officer. On appeal, the
                decision of the presiding officer will not be reversed absent a clear
                abuse of discretion.

Henderson v. Unemployment Compensation Board of Review, 77 A.3d 699, 714 (Pa. Cmwlth.
2013) (internal citations omitted).
                                                  9
                                 IV. Conclusion
            In conclusion, the record contains substantial evidence to support a
termination for willful misconduct. Claimant did not establish good cause for his
actions. Therefore, the Board did not err in determining Claimant was ineligible for
UC benefits under Section 402(e) of the Law.
            Accordingly, we affirm.




                                      MICHAEL H. WOJCIK, Judge




                                        10
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Raymond J. Kertesz,            :
                               :
                    Petitioner :
                               :
                 v.            : No. 1450 C.D. 2017
                               :
Unemployment Compensation      :
Board of Review,               :
                               :
                    Respondent :


                                 ORDER


           AND NOW, this 28th day of June, 2018, the order of the Unemployment
Compensation Board of Review, dated September 19, 2017, is AFFIRMED.




                                   __________________________________
                                   MICHAEL H. WOJCIK, Judge