The opinion
SMITH, Judge,
concurring and dissenting.
I concur in the Majority’s decision to deny consideration of the First Amendment argument presented for the first time in the appeal before this Court. However, I dissent from a *155 reversal of the Unemployment Compensation Board of Review’s decision to grant benefits to Claimant.
Since no constitutional issues are before the Court, the scope of review in this matter is limited to determining whether an error of law was committed or whether the Board’s findings of fact are supported by substantial evidence. Because the Board is the ultimate factfinder with the power to substitute its judgment for that of the referee on disputed facts, Peak v. Unemployment Compensation Board of Review, 509 Pa. 267 , 501 A.2d 1383 (1985), matters of credibility and evidentiary conflicts are within the Board’s discretion and are not subject to judicial re-evaluation by this Court if supported by substantial evidence. See also Bethenergy Mines, Inc. v. Worker’s Compensation Appeal Board, 531 Pa. 287 , 612 A.2d 434 (1992). The Majority has reached beyond this Court’s scope of review to arrive at its decision to reverse the Board.
The Board resolved credibility and evidentiary conflicts in favor of Claimant, finding that Claimant attempted to address his concerns with Goodwill Industries at various times and that he was discharged for distributing misleading information to the public without giving Goodwill an opportunity to defend itself. The testimony demonstrated that Claimant attempted to discuss his employment concerns with his supervisor, Mr. Moser, who yelled at Claimant and stated he didn’t have time to discuss Claimant’s concerns. Claimant also attempted to discuss his concerns with the personnel director, Ms. Yeager; the executive supervisor, Mr. Arnold; and with Mr. Kratofil, president of Goodwill. Claimant did not attend another meeting with Mr. Moser because of his earlier conduct toward Claimant. Because Claimant believed that none of these individuals were interested in his concerns, he felt that going public was his only other route and before doing so, reviewed the company’s rules book to verify that his going public would not violate company rules which would result in his termination.
The Majority nevertheless finds its own facts, irrespective of the Board’s findings to the contrary, that Claimant was afforded an opportunity to adequately pursue his concerns *156 within the framework of Goodwill’s grievance procedures before distributing his leaflets. There is no substantial evidence in the record to support the Majority’s findings of fact even if this Court in its appellate role were legally permitted to engage in its own factfinding. In addition, the existence of grievance procedures is irrelevant to the inquiry since no disciplinary action was pending against Claimant which required him to invoke company grievance procedures. See Boyer v. Unemployment Compensation Board of Review, 499 Pa. 552 , 454 A.2d 524 (1982); Kelley v. Unemployment Compensation Board of Review, 78 Pa. Commonwealth Ct. 136 , 466 A.2d 1143 (1983). Moreover, the Board noted that Claimant had no duty to offer Goodwill an opportunity to rebut Claimant’s charges, although he did in fact provide such an opportunity.
Although Goodwill may discharge Claimant for the reason alleged or for absolutely no reason, Goodwill cannot foreclose Claimant’s entitlement to benefits where his actions did not constitute willful misconduct in connection with his work. Testimony believed by the Board demonstrates that Claimant acted without malice or indifference toward his employer, Groskin v. Unemployment Compensation Board of Review, 103 Pa.Commonwealth Ct. 138, 519 A.2d 1098 (1987) (quoting Kelley); and because the record contains substantial evidence to support the Board’s findings, its determination that Claimant’s acts did not rise to the level of willful misconduct must be sustained by this Court. Any decision to the contrary by the Majority represents an expansion of this Court’s scope of review. 1
. Although Claimant may have taken other avenues through local and/or state administrative agencies to challenge what he believed, among other things, to be Goodwill’s discriminatory policies, the fact remains that the Board did not find Claimant’s behavior fits within the definition of willful misconduct articulated many times by this Court. See Boyer (employee circulation of written reply to supervisor’s critical memos where no attempt by personnel manager to resolve employee complaints held insufficient basis for willful misconduct determination); Kelley (distribution of letter by employee challenging patient-care conditions of employer held insufficient basis for willful misconduct determination); and Groskin (case remanded to determine whether tele *157 phone calls to co-workers about resident abuse charges were for improper purpose or an effort to comply with the law).