IN THE COMMONWEALTH COURT OF PENNSYLVANIA

County of Northampton, :

Petitioner :

:

v. : No. 1271 C.D. 2020

: Submitted: September 20, 2021

Unemployment Compensation :

Board of Review, :

Respondent :

BEFORE: HONORABLE P. KEVIN BROBSON, President Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge (P.)

HONORABLE J. ANDREW CROMPTON, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY PRESIDENT JUDGE BROBSON FILED: December 10, 2021

Petitioner County of Northampton (Employer) petitions for review of an order 

of the Unemployment Compensation Board of Review (Board), dated 

December 1, 2020, which reversed a decision by an unemployment compensation 

referee (Referee), denying benefits pursuant to Section 402(e) of the Unemployment 

Compensation Law (Law).

1

 For the reasons set forth below, we now reverse.

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

§ 802(e). Section 402(e) of the Law provides, in part, that “[a]n employe[e] shall be 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.”
2

I. BACKGROUND

Valerie L. Makula (Claimant) worked for Employer as a registered nurse from 

July 23, 2001, until Claimant was suspended from employment on March 27, 2020. 

(Reproduced Record (R.R.) at 4a-7a.) Employer initially suspended Claimant with 

pay from March 27, 2020, to April 25, 2020, and without pay beginning 

April 26, 2020, for a period of six months. (Id. at 12a, 18a.) Claimant filed for 

unemployment benefits on May 10, 2020. (Id. at 4a.) In its separation information 

filed with the Scranton UC Service Center (Service Center), Employer alleged that 

Claimant was suspended because she engaged in misconduct by “attempt[ing] to 

organize a work stoppage during the term of a collective bargaining agreement” and 

that Claimant should have “used the grievance process to address any and all 

complaints she had about the operation of the nursing home.” (Id. at 9a-10a.) 

Claimant cited in her claim for benefits that she was “wrongfully accused” and that 

“there was no attempt to strike or [stage a] lockout[;] there was no plan for a strike 

or lockout.” (Id. at 7a.) The Service Center concluded that Claimant was not

ineligible for benefits pursuant to Section 402(e) of the Law because Employer failed 

to establish that Claimant attempted to organize a walkout. (Id. at 20a.) Employer 

appealed the Service Center’s determination, and a Referee conducted a telephonic 

hearing. (Id. at 24a-28a, 55a.) Claimant, Employer’s attorney, and three witnesses 

for Employer attended the hearing. (Id. at 55a-57a.)

Employer’s first witness, Liz Kelly (Kelly), the director of human resources 

for Employer, testified that Claimant worked as a registered nurse for Employer for 

roughly 20 years until she was suspended on March 27, 2020. (R.R. at 57a, 60a-61a.) 

Kelly stated that on March 27, 2020, Claimant called several other charge nurses 

who belonged to the same bargaining unit—i.e., who were bound by the same 
3

collective bargaining agreement—and discussed concerns that Employer was 

admitting new residents at a time when COVID-19 was quickly spreading. 

(Id. at 61a.) Kelly noted that Claimant is president of the nurses’ union local and

that the collective bargaining agreement has a clause concerning a grievance 

procedure for submitting complaints to Employer. (Id. at 61a-62a.) Kelly 

essentially asserted that Claimant violated the collective bargaining agreement when 

she raised her and the other nurses’ collective complaint outside the grievance 

procedure process. (See id. at 62a-64a.) Kelly further testified that the collective 

bargaining agreement has a clause prohibiting strikes and walkouts, which is 

intended to prevent patients from being deprived of consistent care. (Id.) Kelly 

submitted that Claimant also violated this clause when she attempted to organize a 

walkout or illegal work stoppage among the nurses. (See id.)

Employer’s second witness, Mary Lou Kaboly (Kaboly), the deputy director 

of human resources for Employer, testified as to the specifics of Claimant’s conduct

on March 27, 2020. (R.R. at 57a.) Kaboly recalled that Claimant was placed on 

administrative leave that day after a conversation with Employer’s administrator

where Claimant had allegedly told the administrator that if she was going to walk 

out of work, she would not be walking out alone—i.e., that Claimant threatened a

work stoppage. (Id. at 65a.) Kaboly subsequently conducted an investigation during 

which she interviewed Claimant regarding her conversation with Employer’s 

administrator. (Id. at 65a-66a.) Claimant admitted to Kaboly that, while she had not 

threatened a walkout, she intended a “peaceful demonstration, a show of solidarity.” 

(Id. at 66a.) Based on her conversation with Claimant, Kaboly believed that 

Claimant was attempting to induce or encourage other nurses to “walk away from 

their workstations and walk out of the building.” (Id.)
4

Claimant then testified as to the circumstances surrounding her conduct on 

March 27, 2020, as follows:

I was approached by a nurse who had some concerns about something 

that was going on [i]n her unit relative to a resident that was new to the 

facility and the person had been . . . tested for COVID-19. At that point 

we weren’t getting results for COVID-19 [tests] immediately, but . . .

the resident was returned to the facility and put on a unit with the 

general population. So[,] this nurse was concerned. As [I am] the union 

president, she did bring that concern to me.

. . . .

[T]hen I called [Employer’s administrator] to have a discussion . . . . 

. . . In the course of that phone conversation . . . [I] ask[ed] . . . why we 

[we]re not quarantining residents that we don’t know are positive or 

negative [for COVID-19] . . . and [it became] a heated conversation 

. . . . I was then . . . told . . . that if I wanted to go home[,] I should 

go[—i.e., that] if I wasn’t comfortable being there I should just leave.

I then did say I’m sure I won’t be going alone. They took that . . . as a 

threat. There was no walkout. There was not stoppage of work. We 

do get to leave our nursing units to go to lunch. And . . . I never left my 

unit because I was on the phone. . . . [T]en minutes later I was escorted 

out of the facility.

(R.R. at 70a-71a.) Claimant further insisted that, while she discussed the issue with 

the other nurses, she did not induce or encourage them to engage in a walkout or 

work stoppage:

I did reach out to nurses. I asked them how they were feeling about 

what was going on at [Employer], and that is when I asked them if they 

would be willing to go to [the] administration together as a group to 

discuss our concerns. I never used the term walkout, and[,] in fact, I 

went as far as saying to . . . the nurses . . . that this was not about anyone 

losing their job, this was not about anybody abandoning any residents. 

I’ve worked for the facility for 19 years. I would never consider 

abandoning the residents I’ve been taking care of.

(Id. at 71a.) She stated that she talked to multiple nurses because she did not want 

to raise the issue with Employer if the concern was isolated, but she found that others
5

had the same concern. (See id. at 73a.) Claimant further clarified her statement to 

Employer’s administrator regarding not walking out alone, saying that she only 

meant that if other nurses were being yelled at or treated in the same way she was, 

that other nurses likely would have walked out as well. (Id.)

Kelly testified that after the internal investigation was conducted and 

Claimant was placed on a temporary suspension, Employer conducted a Loudermill 

hearing2to determine what discipline Claimant would receive for violating the 

collective bargaining agreement. (R.R. at 63a.) Claimant was joined at the hearing 

by her union representatives, and Employer was represented by the county nursing 

home administrator and its director of nursing. (Id.) After the hearing, the decision 

was made that Claimant would not be terminated but that she would face a six-month 

suspension without pay. (Id.) Kelly stated that Claimant and Employer 

subsequently entered into a settlement agreement to memorialize the hearing’s 

outcome, wherein it was established that Claimant had “contacted at least four other 

nurses . . . and discussed what those nurses refer[red] to as a walkout[,] which meant 

that they would be leaving their nursing units for some amount of time.” 

(Id. at 63a-64a.) Claimant further agreed, inter alia, that she would not “attempt to 

organize a walkout or any kind of activity that might involve nurses leaving their 

nursing units instead of using the grievance procedure[,] which is supposed to be 

used for that purpose.” (Id. at 64a.) In her testimony, however, Claimant maintained 

that she only signed the settlement agreement because she wanted to return to her 

position with Employer and she felt she had no other choice. (Id. at 72a.)

2 A Loudermill hearing is a pre-termination hearing given to a public employee that is 

required by due process, as established in Cleveland Board of Education v. Loudermill, 

470 U.S. 532 (1985).
6

After the hearing, the Referee issued a decision, concluding that Claimant was 

ineligible for benefits pursuant to Section 402(e) of the Law. (R.R. at 78a-80a.) The 

Referee found that Claimant intended to threaten Employer with a walkout, that she 

led Employer to believe she was encouraging “a peaceful demonstration and show 

of solidarity,” and that her actions were in violation of the collective bargaining 

agreement. (Id. at 80a.) Claimant’s conduct, therefore, constituted willful 

misconduct under Section 402(e) as being in violation of a work rule—i.e., the 

collective bargaining agreement. (Id.)

Claimant appealed the Referee’s decision, and the Board reversed. In so 

doing, the Board issued the following findings of fact:

1. [C]laimant was last employed by [Employer] as a full-time registered 

nurse from July 2001 until March 27, 2020 . . . .

2. [C]laimant was aware that [E]mployer has a term in its collective 

bargaining agreement that provides: “The [u]nion agrees that there 

shall be no strikes, slowdowns, or other interruption[s] o[f] work by any 

of its members during the term of this [a]greement, but that any disputes 

or differences shall be taken up under the [g]rievance and [a]rbitration 

[process] of this [a]greement.”

3. On March 27, 2020, a nurse complained to [C]laimant about issues 

related to patients positive for COVID-19 being placed on a unit with 

general patients.

4. [C]laimant called other nurses about the complaint to see if others 

felt the same way and to see if they would be willing to go to 

[Employer’s] administration as a group with their complaint.

5. [C]laimant called [Employer’s] administrator and communicated the 

complaint.

6. The conversation became heated[,] and the administrator told 

[C]laimant that she could leave if she did not feel like working.

7. [C]laimant responded that if she left, she would not be the only one 

to walk out.
7

8. [C]laimant was later questioned about what she meant by her 

comment[,] and [C]laimant told the administrator that she intended a 

“peaceful demonstration and stand of solidarity” and refused to explain 

further.

9. [E]mployer and [C]laimant entered into a settlement agreement and 

[E]mployer suspended [C]laimant without pay for six months.

(Board’s Decision at 1-2.) The Board reasoned:

The Referee in this case denied benefits because “[C]laimant’s actions 

and comments showed that she intended to threaten [E]mployer with a 

walkout[,]” and the Referee concluded that [Claimant’s actions] . . . 

violated [E]mployer’s policy[—i.e., the collective bargaining 

agreement]. However, the [collective bargaining agreement] does not 

cover a person’s “intentions”[—]only the act of a strike, slowdown, or 

walkout. Further, the Board credits [C]laimant’s testimony that when 

she spoke with the other nurses, she was only asking them if they would 

be willing to approach the administration as a group with their 

complaints and [that she was] not organizing a strike. The Board 

concludes [C]laimant did not violate [the collective bargaining 

agreement] prohibiting strikes, slowdowns, and walkouts[.] [T]hus, 

[Claimant] is [not in]eligible for benefits under Section 402(e) of the 

. . . Law.

(Id. at 2 (emphasis added).) Employer now petitions this Court for review.

II. ISSUES

On appeal, Employer essentially contends that (1) the Board capriciously 

disregarded relevant evidence of the settlement agreement when rendering its 

findings of fact, and (2) the Board erred as a matter of law in concluding that 

Claimant did not engage in willful misconduct because the settlement agreement 

constitutes an admission that Claimant violated the collective bargaining agreement.

III. DISCUSSION

A. Capricious Disregard

Employer essentially contends that the Board’s finding that Claimant “only” 

spoke with the other nurses about approaching Employer to raise a collective 
8

complaint concerning the patients and COVID-19—and not to organize or 

encourage a walkout—is contradicted by the settlement agreement evidence, which 

evidence Employer alleges the Board capriciously disregarded. According to 

Employer, the settlement agreement establishes that Claimant went outside the 

grievance procedure and attempted to encourage an illegal work stoppage among 

several nurses. Employer, therefore, argues that the Board capriciously disregarded 

this evidence in rendering its findings of fact because it is competent and relevant in 

demonstrating that Claimant engaged in willful misconduct. The Board did not 

address the settlement agreement in its decision below or in its brief on appeal to this 

Court.

Generally, 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. 2 Pa. C.S. 

§ 704. We may also, however, “[d]isturb[] an agency’s adjudication for a capricious 

disregard of evidence . . . where the factfinder has refused to resolve conflicts in the 

evidence, has not made essential credibility determinations[,] or has completely 

ignored overwhelming evidence without comment.” Wise v. Unemployment Comp. 

Bd. of Rev., 111 A.3d 1256, 1263 (Pa. Cmwlth. 2015). “When determining whether 

the Board capriciously disregarded the evidence, the Court must decide if the Board 

deliberately disregarded competent evidence that a person of ordinary intelligence 

could not conceivably have avoided in reaching a particular result, or stated another 

way, if the Board willfully or deliberately ignored evidence that any reasonable 

person would have considered to be important.” Bennett v. Unemployment Comp. 

Bd. of Rev., 33 A.3d 133, 136 n.3 (Pa. Cmwlth. 2011) (quoting Jackson v. 

Unemployment Comp. Bd. of Rev., 933 A.2d 155, 156 n.4 (Pa. Cmwlth. 2007)).
9

The settlement agreement provides, in pertinent part:

During [the term of] a [collective bargaining agreement] containing [a] 

“[n]o [s]trike” clause . . . , and instead of using the grievance procedure 

contained in the same [c]ollective [b]argaining [a]greement to resolve 

. . . dispute[s], [Claimant] chose to inform [Employer] on 

March 27, 2020, that, “[i]f I walk out, I won’t be walking out alone.” 

Furthermore, confirming [Claimant’s] intention, [Claimant] contacted 

at least four other [n]urses . . . and discussed what those nurses 

referred to as a “walkout,” which meant that they would be leaving 

their nursing units for some amount of time.

(R.R. at 42a (emphasis added).) It is clear to this Court that this language constitutes 

an admission that Claimant attempted to encourage an illegal work stoppage, in 

contradiction of the Board’s finding that Claimant “only” spoke to the other nurses 

concerning raising a collective complaint. Nevertheless, the Board failed to consider 

the settlement agreement in its entirety despite the fact that it was properly made part 

of the record at the Referee hearing and a reasonable person would have considered 

the evidence. Based on the foregoing, we agree with Employer that the Board 

capriciously disregarded the settlement agreement evidence. Bennett, 33 A.3d 

at 136 n.3.

B. Settlement Agreement and Willful Misconduct

Employer next asserts that the settlement agreement constitutes an admission 

that Claimant failed to follow the grievance procedure and attempted to encourage 

an illegal work stoppage among several nurses in violation of the terms of their

collective bargaining agreement. Employer notes that in Davis v. Unemployment 

Compensation Board of Review, 426 A.2d 753 (Pa. Cmwlth. 1981), this Court 

“upheld the admission of a signed statement by an employee” admitting to willful 

misconduct. (Employer’s Brief at 20.) Employer further alleges that Claimant has 

not demonstrated that she was coerced into signing the settlement agreement, which 
10

Employer notes is her burden to establish pursuant to the precedent of this Court.

Employer, therefore, contends that the settlement agreement is a clear admission that 

Claimant violated the collective bargaining agreement and committed willful 

misconduct.

An employer bears the burden to prove that it discharged an employee for 

willful misconduct. Adams v. Unemployment Comp. Bd. of Rev., 56 A.3d 76, 78-79 

(Pa. Cmwlth. 2012). This Court has held that an employee who violates a collective 

bargaining agreement “by participating in an illegal work stoppage ha[s] engaged in 

willful misconduct and [is] . . . ineligible to receive benefits . . . .” DiVergigelis v. 

Unemployment Comp. Bd. of Rev., 547 A.2d 513, 515 (Pa. Cmwlth. 1988). An 

employee’s encouragement or inducement of an illegal work stoppage similarly 

constitutes willful misconduct under Section 402(e) of the Law. Hussar v. 

Unemployment Comp. Bd. of Rev., 432 A.2d 643, 646 (Pa. Cmwlth. 1981). 

Furthermore, employees “are required to avail themselves of contractual, legal, or 

equitable remedies for the settlement of disputes with their employers” as opposed 

to a stoppage of work or voluntarily quitting their employment. Westinghouse Elec. 

Corp. v. Unemployment Comp. Bd. of Rev., 144 A.2d 673, 676 (Pa. Super. 1958).

The facts of this case are similar to this Court’s opinion in Davis. There, an 

employee was accused of stealing store merchandise, and, during questioning, the 

employee signed a statement admitting to the theft. Davis, 426 A.2d at 754. This 

Court upheld a finding by the Board that the signed admission form was sufficient 

to establish that the employee engaged in the willful misconduct in question. 

Id. at 755. In so doing, this Court noted that the burden of proving that an admission 

was coerced lies with the admitting party. Id. We, therefore, rejected the employee’s 
11

allegation that the employer had failed to show that the admission was not coerced. 

Id.

In light of our capricious disregard analysis above, we agree with Employer 

that the settlement agreement constitutes an admission that Claimant engaged in 

willful misconduct. The text of the settlement agreement is clear in establishing that 

Claimant admitted to raising a complaint outside the grievance procedure and to 

inducing or encouraging at least four other nurses to participate in a walkout. The 

settlement agreement further demonstrates that Claimant accepted that her actions 

were in violation of the collective bargaining agreement. Notwithstanding the 

Board’s credibility determinations and other findings to the contrary, this admission 

is sufficient under our precedent to establish that Claimant engaged in willful

misconduct. Davis, 426 A.2d at 755. Claimant has not at any point alleged that she

was coerced into signing the admission statement. As noted above, the burden lies 

with Claimant to establish coercion. Id. Thus, because coercion is not at issue here

and the settlement agreement establishes that Claimant violated the collective 

bargaining agreement, it is clear that Claimant committed willful misconduct under 

Section 402(e) of the Law. See DiVergigelis, 547 A.2d at 515; Westinghouse, 

144 A.2d at 676.

IV. CONCLUSION

For the reasons set forth above, the order of the Board is reversed.

P. KEVIN BROBSON, President Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

County of Northampton, :

Petitioner :

:

v. : No. 1271 C.D. 2020

:

Unemployment Compensation :

Board of Review, :

Respondent :

O R D E R

AND NOW, this 10th day of December, 2021, the order of the Unemployment 

Compensation Board of Review is hereby REVERSED.

P. KEVIN BROBSON, President Judge