D.G. Kunkle v. UCBR

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Douglas Gerald Kunkle, :
Petitioner :
:
v. : No. 1556 C.D. 2019
: Submitted: June 19, 2020
Unemployment Compensation :
Board of Review, :
Respondent :
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE BROBSON FILED: December 7, 2020
Petitioner Douglas Gerald Kunkle (Claimant), pro se, petitions for review of
an order of the Unemployment Compensation Board of Review (Board). The Board
affirmed a decision of an Unemployment Compensation Referee (Referee), in which
the Referee concluded that Claimant was ineligible for unemployment compensation
benefits under Section 402(e) of the Unemployment Compensation Law (Law),1
relating to discharge for willful misconduct. For the reasons set forth below,
we affirm the order of the Board.
1
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§ 802(e).
I. BACKGROUND
Claimant applied for unemployment compensation benefits on May 16, 2019,
after separating from his part-time position as a Package Handler with
FedEx Ground Package System (Employer). (Certified Record (C.R.), Item No. 2.)
The Altoona UC Service Center (Service Center) determined that Claimant was
eligible for unemployment compensation benefits for the waiting week ending
May 18, 2019. (C.R., Item No. 5 at 1.) Employer appealed the Service Center’s
determination, and a Referee conducted a hearing. (C.R., Item Nos. 6, 10.)
Both Claimant and Employer’s representative, Ryan Remaly (Remaly), testified at
the hearing. (C.R., Item No. 10.)
Remaly testified that Claimant worked for Employer from March 18, 2019, to
May 14, 2019. (Id. at 5-6.) During Claimant’s employment, Remaly worked at the
same facility as Claimant as a Safety Focused Operations Manager. (See id. at 7-8.)
One of Remaly’s roles was to document the names of employees arriving late for
work. (Id. at 7-9.) Employer’s tardiness policy provided a three-minute grace
period, after which employees were considered tardy and their delay was recorded
and provided to upper management. (Id.) Remaly stationed himself in the guard
shack at the beginning of shifts where employees entered the premises, and, when a
tardy employee arrived, he would note the time and ask the tardy employee for
his/her badge to document the employee’s name. (Id.) Remaly testified that on
May 14, 2019, Claimant entered the guard shack at 10:42 p.m. for his 10:30 p.m.
shift. (Id. at 7.) When Remaly asked for Claimant’s badge, Claimant refused and
started out of the guard shack toward the larger FedEx building where he worked.
(Id. at 8.) Remaly again asked Claimant for his badge, to which Claimant responded:
“No, [expletive] you.” (Id.) Remaly then grabbed Claimant’s badge and ordered
him to leave the premises, which Claimant did. (Id.) Remaly stated that Employer’s
Human Resources office later notified Claimant that Claimant was fired as a result
2
of the incident. (Id. at 10.) Remaly noted that Employer’s policy on acceptable
employee conduct was posted on the front board of the building in which Claimant
worked. (Id. at 11.) The policy includes discipline up to and including termination
for insubordination and comments, communication, and representations that may be
viewed as threatening, violent, intimidating, or malicious. (Id. at 10-11; C.R.,
Item No. 6 at 5.)
Claimant similarly testified that he arrived at 10:42 p.m. for his 10:30 p.m.
shift on the day of the incident. (C.R., Item No. 10 at 15.) After Remaly stopped
Claimant at the guard shack and demanded his badge, Claimant responded that he
was going to punch in and come back so they could discuss the situation further.
(Id. at 17.) Remaly asked Claimant where he was going to punch in, to which
Claimant responded: “[W]here the [expletive] do you think I am going to punch in
at?” (Id.) After Remaly demanded Claimant’s badge a second time, Claimant
responded: “[N]o, [expletive] you.” (Id. at 19.) Remaly then grabbed Claimant’s
badge from his hand and told him: “[Y]ou’re fired.” (Id. at 17-18.) Claimant
testified that he was under the assumption that Remaly had no authority as Safety
Focused Operations Manager to demand his badge or record the tardiness of an
employee. (Id. at 19-20.) Alternatively, Claimant believed he was being hazed and
that Remaly was attempting to embarrass him in front of the security guards and
other employees. (Id. at 17, 21.)
As to Remaly’s managerial authority, Claimant testified that two weeks before
the incident in question, after Claimant arrived late to work and Remaly asked for
his badge, Claimant emailed a manager to determine whether Remaly had authority
as Safety Focused Operations Manager to record employees’ tardiness and demand
to see employees’ badges. (Id. at 14, 19-20.) Claimant did not get a response to his
email, and he did not follow up with upper management or question Remaly directly
about his authority. (Id. at 14, 20-23.) Claimant introduced into evidence an email
3
chain between several of Employer’s managers that Remaly was not a part of, he
noted that Remaly was not listed as a manager on Employer’s website, and he
claimed that Remaly was not present at a managers’ meeting he attended.
(Id. at 21-23.) Claimant disputed Remaly’s testimony that Employer’s policy on
acceptable conduct was available for review, and he stated that the employee
handbook he received was missing pages and/or out of date. (Id. at 12-13.) Claimant
noted, however, that he was aware that Employer had an active policy concerning
acceptable employee conduct and that insubordination and comments and
communications that are threatening, violent, intimidating, or malicious could
potentially lead to termination. (See id.; C.R., Item No. 6 at 5.)
On rebuttal, Remaly confirmed that he is in fact a manager and that he was
given specific instructions and authority to document the names of employees who
were more than three minutes late and to report that information to upper
management. (Id. at 29.) Remaly walked back his earlier testimony that Claimant
was ultimately fired by Human Resources and stated that it was likely that he fired
Claimant on the spot. (Id. at 30.) Remaly stated, however, that terminating
employees was within his authority as a manager. (Id.) Finally, Remaly testified
that he had in the past called his manager to provide an explanation of his role to
other employees who questioned his authority in this regard. (Id.) Had Claimant
requested that Remaly corroborate his management position and authority, he stated
he would have done so. (Id.)
Following the hearing, the Referee issued a decision, concluding that
Claimant was ineligible for unemployment compensation benefits under
Section 402(e) of the Law, relating to termination for willful misconduct.
(C.R., Item No. 11.) The Referee issued the following findings of fact:
4
1. The claimant was employed part-time as a Package Handler with
FedEx Ground Package System . . . . The claimant was employed
from March 18, 2019[,] to May 14, 2019, his last day worked.
2. The employer possesses a policy that provides that employees
may be terminated for engaging in insubordination or the refusal
to follow work instructions, for which the claimant was or should
have been aware.
3. The employer possesses a policy that provides that employees
may be terminated for engaging in behavior that is threatening,
violent, malicious, or grossly obscene that may constitute
bullying or harassment, for which the claimant should have been
aware.
4. The Safety Focused Operations Manager was assigned by the
employer to record the badge information of employees that
arrived after the three-minute grace period of their scheduled
work shift.
5. On April 30, 2019, the claimant sent an email to an employer’s
manager, John Perazetti, asking for an explanation because it was
in his opinion not protocol for the “safety manager” to demand
his badge when the claimant arrived late for work.
6. The claimant did not receive a response from Mr. Perazetti or
any other manager regarding his inquiry.
7. On May 14, 2019, the claimant arrived at work
approximately 12 minutes after the start of his work shift.
8. As the claimant entered the guard shack, the Safety Focused
Operations Manager directed the claimant to show his badge to
be recorded due to the claimant’s tardiness.
9. The claimant stated, “let me punch in and then we’ll discuss it”
and proceeded to the FedEx building.
10. The Safety Focused Operations Manager asked the claimant
where he intended to punch in for the day.
11. The claimant responded by stating, “Where the [expletive] do
you think I’m going to punch in?”[]
12. The Safety Focused Operations Manager again directed the
claimant to show his badge; whereas the claimant stated, “No,
[expletive] you[.]”[]
5
13. The Safety Focused Operations Manager then removed the badge
from the claimant and sent him home, advising him “you’re
fired[.]”[]
(Id. at 1-2.)
Claimant appealed to the Board. (C.R., Item No. 12.) The Board adopted and
incorporated the Referee’s findings of fact and conclusions of law and affirmed the
order of the Referee. (C.R., Item No. 14 at 1-2.) In so doing, the Board offered the
following reasoning, addressing the numerous issues raised by Claimant in his
appeal to the Board:
The Board does not find credible the claimant’s testimony that he was
unaware that the individual who was requesting his badge during the
incident of May 14, 2019, was a manager and was acting within his
authority throughout the incident, his assertion that the employer had
an ulterior motive in discharging him, or his assertion that his
objectionable behavior was caused by pain that he was allegedly
experiencing. Even if the employer had not had a specific policy in
place, the claimant’s profanity-laced insubordinate behavior is beneath
the standards of behavior that an employer has the right to expect from
its employees.
The claimant asserts that Employer’s appeal from the June 7, 2019,
determination was untimely because it was filed on June 24, 2019,
which was beyond the statutory deadline of 15 days contained in
Section 501(e) of the Law[, 43 P.S. § 821(e)]. The claimant is
mistaken. Because the 15th day was Saturday, June 22, 2019, the
appeal deadline was extended to the following Monday, June 24, 2019,
pursuant to 1 Pa. Code § 31.12.
Regarding the claimant’s request that the Board disqualify the
employer’s tax agent for allegedly engaging in the unauthorized
practice of law in filing the appeal dated June 24, 2019, the claimant’s
request is denied. In Harkness v. [Unemployment Compensation Board
of Review, 920 A.2d 162 (Pa. 2007)], the Supreme Court held that
proceedings before the [Board] do not constitute the practice of law.
Moreover, Section 214 of the Law[2] permits non-attorney
representation at proceedings before . . . the Referee and the Board. The
Board concludes that this would also include filing an appeal on behalf
2
Added by the Act of June 15, 2005, P.L. 8, 43 P.S. § 774.
6
of a party as a representative. Finally, Section 214 of the Law does not
violate the Supreme Court’s authority to regulate the practice of Law.
Regarding the claimant’s request that the Board disqualify the Referee
who presided over his hearing because the Referee’s Pennsylvania law
license is currently “inactive[,]”[] the claimant’s request is denied.
There is no requirement that the occupant of the position of “Appeals
Referee” (Job Code 07310) be a licensed attorney.
Finally, the Referee’s conduct of the hearing was proper and in
accordance with the requirements of due process.
(Id.) Claimant filed a request for reconsideration of the Board’s decision, which the
Board denied. (C.R., Item Nos. 15, 17.)
II. ISSUES
On appeal to this Court,3 Claimant argues that: (1) the Board erred in
concluding that Employer’s appeal from the Service Center’s June 7, 2019 decision
was timely; (2) substantial evidence does not exist to support the Board’s finding
that Remaly had the authority to record tardiness and check his badge; (3) the Board
erred in concluding that Claimant’s conduct was not justified by good cause; (4) the
Board erred in concluding that Employer’s appeal was properly filed; and (5) the
Board erred in concluding that the Referee conducted the hearing without bias and
in concluding that the Referee did not need an active law license to preside over the
hearing.
A. Timeliness of Appeal
Claimant first argues that Employer’s appeal was untimely. Section 501(e) of
the Law provides that a determination of an Unemployment Service Center shall be
final unless an appeal is filed within fifteen calendar days after such notice is
3
This Court’s standard 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. Section 704 of the Administrative Agency Law, 2 Pa. C.S.
§ 704.
(Footnote continued on next page…)
7
personally delivered to the parties or mailed to their last known post office address.4
Section 501(e) is supplemented by the General Rules of Administrative Practice and
Procedure, 1 Pa. Code § 31.12, which provides, in relevant part: “The last day of
the [appeal] period so computed shall be included, unless it is Saturday, Sunday or
a legal holiday in this Commonwealth, in which event the period shall run until the
end of the next day which is neither a Saturday, Sunday nor a holiday.” (Id.)
Section 101.82 of the Board’s regulations, 34 Pa. Code § 101.82, provides that a
party may file a written appeal via fax transmission. Furthermore, when filed via
fax transmission, the filing date of the appeal will be determined first by the date of
receipt imprinted by the fax machine of the unemployment compensation
authorities. 34 Pa. Code § 101.82(b)(3)(i)(A). If no such legible imprint exists, then
the date of filing shall be determined by the date of transmission imprinted on the
faxed appeal by the sender’s fax machine. 34 Pa. Code § 101.82(b)(3)(i)(B). “If the
faxed appeal is received without a legible date of transmission, the filing date will
be the date recorded by the Department, the workforce investment office[,] or the
Board when it receives the appeal.” 34 Pa. Code § 101.82(b)(3)(i)(C).
Here, the Service Center mailed the Notice of Determination (Notice) to the
parties on Friday, June 7, 2019. The fifteen-day period for appeal would have
resulted in an appeal being due the following Saturday, June 22, 2019, and, therefore,
4
Section 501(e) of the Law provides:
(e) Unless the claimant or last employer or base-year employer of the claimant files
an appeal with the board, from the determination contained in any notice required
to be furnished by the department under section five hundred and one (a), (c) and
(d), within fifteen calendar days after such notice was delivered to him personally,
or was mailed to his last known post office address, and applies for a hearing, such
determination of the department, with respect to the particular facts set forth in such
notice, shall be final and compensation shall be paid or denied in accordance
therewith.
8
the appeal period automatically extended to the following Monday—i.e.,
June 24, 2019. See 1 Pa. Code § 31.12. This is consistent with the Notice,
which specifically identified June 24, 2019, as the last day to file an appeal.
(C.R., Item No. 5 at 1-3.) A review of the record reveals the following: (1) the first
page of the appeal is stamped “received” by the Referee’s office with a date of
June 28, 2019; (2) a fax transmission date and time of June 24, 2019, at 11:40 a.m.,
is imprinted on the top of each page of the appeal letter; and (3) another fax
transmission date and time of June 24, 2019, at 12:40 p.m., is imprinted on the
bottom of each page of the appeal letter, along with the words “Received Time.”
Thus, it appears that Employer faxed the appeal letter on June 24, 2019,
at 11:40 a.m.; it was received by unemployment compensation authorities that same
day at 12:40 p.m.; and the Referee’s office stamped it “received” on June 28, 2019.
(C.R., Item No. 6 at 1-9.) Under this scenario, the date of receipt imprinted by
unemployment compensation authorities—June 24, 2019—is the controlling date,
and the appeal is timely filed.
B. Substantial Evidence
We next consider whether substantial evidence exists in the record to support
the Board’s finding that Remaly was a manager with authority to record employee
tardiness and check Claimant’s badge. Substantial evidence has been defined by this
Court as “such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” Murphy v. Dep’t of Pub. Welfare, White Haven Ctr.,
480 A.2d 382, 386 (Pa. Cmwlth. 1984). When determining whether substantial
evidence supports a finding of the Board, this Court examines the testimony in the
light most favorable to the prevailing party. Johnson v. Unemployment Comp. Bd.
of Rev., 502 A.2d 738, 740 (Pa. Cmwlth. 1986). All reasonable and logical
9
inferences are drawn in the prevailing party’s favor. Id. The Board’s findings of
fact are binding on appeal if, after a comprehensive review of the record, there is
substantial evidence to support them. Penflex, Inc. v. Bryson, 485 A.2d 359, 365
(Pa. 1984). This is so even when evidence exists in the record that could support a
contrary conclusion. Johnson v. Unemployment Comp. Bd. of Rev., 504 A.2d 989,
990 (Pa. Cmwlth. 1986). Moreover, as the ultimate finder of fact, the Board has
authority to make determinations of credibility which are “not subject to
re-evaluation on judicial review.” Peak v. Unemployment Comp. Bd. of Rev.,
501 A.2d 1383, 1388 (Pa. 1985) (quoting Miller v. Unemployment Comp. Bd. of
Rev., 405 A.2d 1034, 1036 (Pa. Cmwlth. 1979)).
Claimant argues that substantial evidence does not exist in the record to
support a finding that Remaly was a manager with authority to record employee
tardiness and check Claimant’s badge. We disagree. In the first instance, Employer
stated in its appeal that Claimant was dismissed for insubordination for failing to
provide his badge and for making derogatory and inappropriate comments to the
“op[eration]s manager.” (C.R., Item No. 6 at 3 (emphasis added).) Employer,
therefore, represented in its appeal letter that Remaly is a manager. Furthermore,
Employer appointed Remaly to testify on Employer’s behalf, and twice during his
testimony he confirmed that, in his position as Safety Focused Operations Manager,
he was bestowed with managerial authority to document the tardiness of employees,
including viewing their badges. (C.R., Item No. 10 at 9, 29.)5 He further testified
5
Claimant makes an unfounded assertion that Remaly’s testimony concerning Claimant’s
termination was hearsay. “Hearsay is an out-of-court statement offered to prove the truth of the
matter asserted.” Alessandro v. Workers’ Comp. Appeal Bd. (Precision Metal Crafters, LLC),
972 A.2d 1245, 1250 (Pa. Cmwlth. 2009). In unemployment compensation cases,
“[h]earsay evidence, admitted without objection, will be given its natural probative effect and may
support a finding if it is corroborated by any competent evidence of record.” Id. at 1250-51(Footnote continued on next page…)
10
that, as a manager, he had the power to terminate employees for insubordination.
(Id. at 30.) Both the Referee and the Board found Remaly’s testimony to be credible.
(C.R., Item No. 11 at 3; C.R., Item No. 14 at 1.) The Board also specifically
discredited Claimant’s testimony that he was unaware that Remaly was a manager.
(C.R., Item No. 14 at 1.) We, therefore, conclude that substantial evidence in the
record exists to support the Board’s finding that Remaly was a manager and had
authority to act as he did during the incident.
C. Willful Misconduct
Claimant next challenges the Board’s conclusion concerning willful
misconduct. Section 402(e) of the Law provides that an employee is ineligible for
compensation for any week “[i]n which his unemployment is due to his discharge or
temporary suspension from work for willful misconduct connected with his work.”
While not explicitly defined in the Law, willful misconduct has routinely been
characterized by this Court as: “(1) wanton and willful disregard of an employer’s
interests; (2) deliberate violation of [an employer’s work] rules; (3) 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.” Waverly Heights, Ltd. v. Unemployment Comp.
Bd. of Rev., 173 A.3d 1224, 1228 (Pa. Cmwlth. 2017). It is well-established that
“[w]hether conduct rises to the level of willful misconduct is a question of law to be
(citing Walker v. Unemployment Comp. Bd. of Rev., 367 A.2d 366 (Pa. Cmwlth. 1976)).
While Remaly initially testified that he believed someone from Employer’s Human Resources
office had ultimately fired Claimant, he later recanted and said it was likely that he fired Claimant
during the incident. (C.R., Item No. 10 at 30.) This testimony was based on Remaly’s personal
knowledge. Testimony based on personal knowledge is not hearsay. See Pa.R.E. 602; Cmwlth. v.
Johnson, 838 A.2d 663, 673 (Pa. 2003), cert. denied, 543 U.S. 1008 (2004). Furthermore,
Claimant testified that Remaly told him: “[Y]ou’re fired.” (C.R., Item No. 10 at 19.)
11
determined by this Court.” Brown v. Unemployment Comp. Bd. of Rev., 49 A.3d
933, 937 (Pa. Cmwlth. 2012). The initial burden rests with the employer to show
willful misconduct on the part of the employee. Adams v. Unemployment Comp. Bd.
of Rev., 56 A.3d 76, 78-79 (Pa. Cmwlth. 2012). If willful misconduct is based on a
violation of an employer’s policy or work rule, the employer must establish the rule’s
existence, its reasonableness, and that the employee was aware of the rule when the
employee violated it. Brown, 49 A.3d at 937. Even absent an employer policy or
work rule, an employee’s use of vulgar and abusive language toward a superior,
when unprovoked and greater than de minimis, can constitute willful misconduct.
Brown, 49 A.3d at 937; Allen v. Unemployment Comp. Bd. of Rev., 638 A.2d 448,
450-51 (Pa. Cmwlth. 1994). Once the employer makes a showing of willful
misconduct, the burden shifts to the employee to establish that good cause justified
his conduct. Brown, 49 A.3d at 937 (citing Gillins v. Unemployment Comp. Bd. of
Rev., 633 A.2d 1150, 1156 n.3 (Pa. 1993)).
Employer has a policy that provides that an employee may be discharged for
comments or communications that are threatening, violent, intimidating, or
malicious. (C.R., Item No. 6 at 5.) Employer also has a policy that provides that
employees may be terminated for engaging in insubordination or the refusal to
follow work instructions. (Id.) Remaly testified that Employer’s policies are
posted on the front board in the facility in which Claimant worked.
(C.R., Item No. 10 at 11.) Claimant disputed Remaly’s testimony, however, arguing
that although he was aware that Employer had a policy on acceptable employee
conduct, he never received the specific Employer policies referenced above and his
employee handbook was out of date and/or missing pages. (Id. at 12-13.) When the
Referee asked Claimant if he was aware of the Employer policies, Claimant
12
responded: “Yes and no.” (Id. at 13.) The Referee concluded that Claimant knew
or should have known of Employer’s policies, which findings were adopted by the
Board in its order. (C.R., Item No. 11 at 1-2; C.R., Item No. 14 at 2.)
Whether Claimant was actually aware of Employer’s policies is irrelevant.
We agree with the Board that, even if Employer had no policy prohibiting such
conduct, Claimant’s unprovoked, profanity-laced behavior fell below the standards
of behavior Employer had a right to expect from Claimant. See Waverly Heights,
Ltd., 173 A.3d at 1228. There is no dispute that Claimant used vulgar and abusive
language toward Remaly. Claimant testified that when Remaly asked where he was
going to punch in, he responded: “[W]here the [expletive] do you think I am going
to punch in at?” (C.R., Item No. 10 at 17-18.) After Remaly demanded his badge a
second time, Claimant answered: “[N]o, [expletive] you.” (Id. at 19.) There is also
no dispute that Claimant failed to provide his badge to Remaly for documentation
and, therefore, violated a reasonable directive by a superior who possessed, at the
very least, apparent authority to demand his badge. See, e.g., ATM Corp. of Am. v.
Unemployment Comp. Bd. of Rev., 892 A.2d 859, 866-68 (Pa. Cmwlth. 2006)
(concluding that employee’s refusal to submit to background check constituted
insubordinate behavior even when background checks were not specifically required
by employer’s policies). We, therefore, conclude that Employer met its initial
burden of showing that Claimant engaged in willful misconduct.
Our analysis, however, does not end there, as Claimant appears to argue that
he had good cause for his willful misconduct. Claimant argues that the incident was
provoked by Remaly, because Remaly was not a manager and was acting outside his
authority throughout the incident. Claimant maintains that Remaly was an
13
“imposter” manager who was hazing him, and he, therefore, had good cause for his
misconduct. (See Petitioner’s Br. at 10.)
The Board did not rule on whether Claimant had good cause for his willful
misconduct. As we noted previously, however, the Board specifically discredited
Claimant’s testimony that Claimant was unaware that Remaly was a manager.
(C.R., Item No. 14 at 1.) The Board also adopted and incorporated the Referee’s
findings of fact numbers five and six, along with the Referee’s reasoning to support
them, which detail Claimant’s failed attempt to obtain an answer from upper
management regarding Remaly’s authority. The Referee explained: “[C]laimant
admitted that he never received a response from management when he inquired
about the Safety Focused Operations Manager’s credentials and never asked to speak
with higher management during the incident while refusing to comply
[with Remaly’s directive] and before using profanities.” (C.R., Item No. 11 at 3.)
Based upon the findings of fact and the credibility determinations of the Referee and
Board, we conclude that Claimant did not have good cause for his misconduct.
Claimant had ample opportunity to resolve any doubts regarding Remaly’s authority
prior to or during the incident by speaking directly with his known managers or with
Remaly himself. (See C.R., Item No. 10 at 21-22); see also Luketic v. Unemployment
Comp. Bd. of Rev., 386 A.2d 1045, 1048 (Pa. Cmwlth. 1978) (holding that
reasonable questions regarding superior’s statements or authority do not constitute
willful misconduct). Remaly specifically testified that, had Claimant requested
Remaly verify his managerial position and authority with upper management, he
would have done so, as he had for other employees in the past. (Id. at 30.) Claimant
instead resorted to unprovoked, profanity-laced behavior. Claimant’s assumption
that Remaly was an “imposter” manager, without more, does not justify his
14
misconduct. We conclude, therefore, that the Board did not err in determining that
Claimant’s actions constituted willful misconduct, and we further conclude that
Claimant did not establish good cause to justify his willful misconduct.
D. Filing of Employer’s Appeal
We next consider whether the Board erred in allowing Danny Robinson,
an Unemployment Determination Specialist with TALX UCM Services, Inc.
d/b/a Equifax Workforce Solutions (Employer’s Representative), to file Employer’s
appeal. (C.R., Item No. 6 at 3.) Claimant makes two separate arguments in support
of his challenge: (1) the Board’s procedural rules allow only a non-attorney
representative to “represent parties at proceedings,” not to file an appeal on a party’s
behalf; and (2) only an attorney can file legal documents with the Board.
(Pet. Br. At 7-9.)
Section 214 of the Law provides: “Any party in any proceeding under this act
before the department, a referee or the board may be represented by an attorney or
other representative.” Section 214 does not discuss the filing of an appeal, however,
and “proceeding” is not defined elsewhere in the Law. Nevertheless, it is implicit in
Section 214 that the filing of an appeal would naturally be included in the
representation of a party during a proceeding before the Board. This procedural rule,
therefore, does not prevent the filing of an appeal to the Board by a non-attorney
representative. Furthermore, in Harkness, the Supreme Court of Pennsylvania held
that a tax representative of an employer (similar to Employer’s Representative here)
did not engage in the unauthorized practice of law by representing an employer at
an unemployment hearing before a referee of the Board. Harkness, 920 A.2d at 169.
The Court noted the routine nature of an unemployment hearing, which is
“primarily focus[ed] upon creating a factual basis on which a referee will award or
15
deny unemployment compensation benefits.” Id. at 168. Such non-attorney
representatives, the Court stated, are “more akin to facilitators rather than legal
practitioners.” Id. We agree with the Board that the rationale in Harkness controls
the instant situation and permits the filing of an appeal to the Referee by a
non-attorney. Accordingly, the Board did not err in concluding that Employer’s
Representative had the authority to file Employer’s appeal to the Referee.
E. Referee Qualifications and Bias
Lastly, we address Claimant’s contentions that the Referee was biased in favor
of Employer’s witness, Remaly, and that the Referee should have recused himself
because he elected inactive status on his law license. After a thorough review of the
hearing transcript, we discern no evidence suggesting bias on the part of the Referee
in favor of either party. Rather, we agree wholeheartedly with the Board’s
conclusion that “the Referee’s conduct of the hearing was proper and in accordance
with the requirements of due process.” (C.R., Item No. 14 at 2.) We further agree
with the Board’s decision as it relates to the Referee’s inactive law license. Claimant
cites no requirement that an Appeals Referee be qualified as an attorney, let alone
have an active law license, in order to hold the position, and we are not aware of any
such requirement. Thus, Claimant’s arguments are without merit.
III. CONCLUSION
Accordingly, we affirm the order of the Board.
P. KEVIN BROBSON, Judge
16
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Douglas Gerald Kunkle, :
Petitioner :
:
v. : No. 1556 C.D. 2019
:
Unemployment Compensation :
Board of Review, :
Respondent :
ORDER
AND NOW, this 7th day of December, 2020, the order of the Unemployment
Compensation Board of Review, is AFFIRMED.
P. KEVIN BROBSON, Judge