Bala v. Com., Unemployment Compensation Bd. of Review

• Decision Date: 08 May 1979
• Citation: 400 A.2d 1359,42 Pa.Cmwlth. 487
• Parties: Irwin A. BALA, Petitioner, v. COMMONWEALTH of Pennsylvania, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, Respondent.
• Court: Pennsylvania Commonwealth Court

Page 1359

400 A.2d 1359

42 Pa.Cmwlth. 487

Irwin A. BALA, Petitioner, v. COMMONWEALTH of Pennsylvania, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, Respondent.

Commonwealth Court of Pennsylvania.

Argued Dec. 5, 1978.

Decided May 8, 1979.

Richard P. Perna, Community Legal Services, Inc., Philadelphia, for petitioner.

Susan Shinkman, Asst. Atty. Gen., Unemployment Compensation Bd. of Review., Harrisburg, for respondent.

Before BOWMAN, President Judge, and CRUMLISH, Jr., MENCER, ROGERS, BLATT, DiSALLE and CRAIG, JJ.

BOWMAN, President Judge.

This case involves the denial of unemployment compensation benefits because of an employee's private communication to the employer's hotel guest concerning a nonbusiness related matter. At issue is whether the communication involved is protected speech under the First Amendment of the United States Constitution, rendering the denial of benefits unconstitutional as a violation of the First and Fourteenth Amendments, and, if not, whether the employee's conduct in sending the communication rose to willful misconduct justifying denial of unemployment compensation pursuant to Section 402(e) of the Unemployment Compensation Law (Law). ¹

The appellant, Irwin A. Bala, was last employed by the Benjamin Franklin Hotel (Hotel) as a Roundsman, a night watchman without a uniform or firearms, from June 29, 1975 until March 21, 1976. Although he had during this ten month period received periodic warning notices concerning his job performance, according to the testimony of the Hotel's personnel manager Bala was terminated as a result of an incident which occurred on his last day of work, March 21, 1976. ²

This incident was precipitated by a visit to the Hotel by one John Geisman, the Pennsylvania Manager of Senator Fred Harris's Presidential campaign, a campaign toward which Bala had in the past evidenced some interest.

According to Bala's testimony before the referee, he arranged to meet Geisman in the hotel lobby prior to the start of his rounds on the night of March 21st. When Geisman did not appear he called up to his room and apparently was assured that Geisman would be right down. Geisman never appeared.

Feeling "angry" and "snubbed", Bala wrote a note on hotel stationery indicating his displeasure with the Harris campaign and suggesting he was going to work against Senator Harris in Pennsylvania. ³ On his normal rounds that evening he placed the note under the door of Geisman's room. Upon receipt of the note a complaint was lodged and Bala was discharged.

Bala applied for unemployment compensation benefits, which application was turned down by the Bureau of Employment Security on the basis of Section 402(e). He appealed this determination, and after hearing before a referee, was again denied benefits. Bala appealed to the Unemployment Compensation Board of Review which affirmed the referee, and this appeal followed.

Appellant argues that his activity was protected speech under the First Amendment, and that the subsequent denial of unemployment benefits on account of his communication amounts to an impermissible infringement of his rights protected by the First and Fourteenth Amendments to the United States Constitution.

He argues further that his actions did not amount to willful misconduct under the law because his communication was personal in nature and not sufficiently work-related to support the conclusion that his actions amounted to an intentional disregard of the standards which his employer had a right to expect.

The Unemployment Compensation Board of Review (Board) counters that the note Bala delivered was of no public importance, was harmful to the Hotel's business, and was not protected by the First Amendment. Because he annoyed a guest with a disrespectful note, continues the Board, he should be considered discharged for willful misconduct and not entitled to unemployment compensation benefits.

This appeal is another instance of the continuing struggle to maintain a proper balance between individual rights and the increasing collectivism of modern society. ⁴ As government hegemony has proliferated within the context of an increasingly complex industrialized society, an inevitable tension has arisen between the system of freedom of expression emanating out of the First Amendment and the institutional concerns of government in organizing the relationship between individual and state. If there is to be learned but a single lesson from the developing decisional law on this subject it is that the static application of a perceived principle behind the Amendment grows increasingly difficult. ⁵

We believe that it is somewhat simplistic to claim, as appellant does here, that his note to a presidential campaign manager, being "pure speech" is thereby necessarily entitled to First Amendment protection, to be compromised only in the event of a "compelling" state interest. See Buckley v. Valeo, 424 U.S. 1, 44-45, 96 S.Ct. 612, 647, 46 L.Ed.2d 659 (1976) ("(T)he constitutionality . . . turns on whether the governmental interests advanced . . . satisfy the exacting scrutiny applicable to limitations on core First Amendment rights of political expression."); Sherbert v. Verner, 374 U.S. 398, 406, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963); Sweezy v. New Hampshire, 354 U.S. 234, 265, 77 S.Ct. 1203, 1219, 1 L.Ed.2d 1311 (1957) (Frankfurter, J., concurring) ("For a citizen to be made to forego even a part of so basic a liberty as his political autonomy, the subordinating interest of the State must be compelling."); Thomas v. Collins, 323 U.S. 516, 530, 65 S.Ct. 315, 89 L.Ed. 430 (1944); See also Black, The Bill of Rights, 35 N.Y.U.L.Rev. 865 (1960).

Rather, before any inquiry can be made into the level of First Amendment protection, a preliminary determination must be made that the expression is within its ambit, See Kalven, The Reasonable Man and the First Amendment: Hill, Butts and Walker, (1967) Sup.Ct.Rev. 267, 278, 290; BeVier, The First Amendment and Political Speech: An Inquiry into the Substance and Limits of Principle, 30 Stan.L.Rev. 299, 301, 311 (1978).

Of specific relevance to defining the ambit of First Amendment protection is an appreciation of the form of government established by the Constitution, and the role freedom of expression was intended to play in preserving a representative democracy. Though the system as we know it today has been moulded and remoulded by application to different circumstances and social problems, the concept remains essentially a product of the development of the liberal constitutional state.

Though much debate has been generated seeking to define the scope of First Amendment protection, there remains as a fundamental initial proposition that "a major purpose of th(e) (First) Amendment was to protect the free discussion of governmental affairs, . . . of course includ(ing) discussions of candidates . . . ." Mills v. Alabama, 384 U.S. 214, 218, 86 S.Ct. 1434, 1437, 16 L.Ed.2d 484 (1966); See also Abood v. Detroit Board of Education, 431 U.S. 209, 231, 97 S.Ct. 1782, 52 L.Ed.2d 261 (1977); Buckley v. Valeo, supra.

"It would follow, then, that the First Amendment should protect and indeed encourage speech So long as it serves to make the political process work . . . ." A. Bickel, The Morality of Consent 62 (1975) (emphasis added). Therein lies our "profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide- open . . . ." New York Times, Inc. v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710, 721, 11 L.Ed.2d 686 (1967); simply that as a fundamental principle of a constitutional system of government "free political discussion (must be maintained) to the end that government may be responsive to the will of the people and that changes may be obtained by lawful means." Stromberg v. California, 283 U.S. 359, 369, 51 S.Ct. 532, 536, 75 L.Ed. 1117 (1931). ⁶

What is crucial to our politics is discussion, an exchange of views, opinion, debate, a ventilation of desires, hopes or aspirations. Accordingly, what is crucial to First Amendment protection is the public nature of the communication. Pickering v. Board of Education, 391 U.S. 563, 571-72, 88 S.Ct. 1731, 1736, 20 L.Ed.2d 811 (1968) (dispute concerned "a difference of opinion . . . as to the preferable manner of operating the school system, a difference of opinion that clearly concerns an issue of general public (importance)"); Sprague v. Fitzpatrick, 546 F.2d 560, 565 (3rd Cir. 1976); Roseman v. Indiana University of Pennsylvania at Indiana, 520 F.2d 1364, 1368 (3rd Cir. 1975); Hopkins v. Dolinger, 453 F.Supp. 59, 61 (W.D.Va.1978); Lewis v. Southeastern Pennsylvania Transportation Authority, 440 F.Supp. 887, 892 n.6 (E.D.Pa.1977); Pilkington v. Bevilacqua, 439 F.Supp. 465, 474 (D.R.I.1977).

Even given the existence of an issue of public concern and importance, however, it has never been held that there does not exist a scale of societal values which may compromise in part the value society places on uninhibited freedom of speech. "(I)t has never been deemed an abridgment of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed." Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 502, 69 S.Ct. 684, 691, 93 L.Ed. 834 (1949); Ohralik v. Ohio State Bar Assn., 436 U.S. 447, 456, 98 S.Ct. 1912, 56 L.Ed.2d 444 (1978). Judicial concepts must respond to certain pragmatic concerns, sometimes at the expense of the abstract legitimacy inherent in a certain manner of expression or its content, "for the First and Fourteenth Amendments have never been thought to give absolute protection to every individual to speak whenever or wherever he pleases or to use any form of address in any circumstances that he chooses." Cohen v. California, 403 U.S. 15, 19, 91 S.Ct. 1780, 1785, 29 L.Ed.2d 284 (1971).

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