Opinion
No. 1914 C.D. 2013
07-18-2014
Stephen G. Birkenmaier, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE BROBSON
Petitioner Stephen G. Birkenmaier (Claimant) petitions for review of an order of the Unemployment Compensation Board of Review (Board), which affirmed a decision and order of a Referee, thereby denying unemployment compensation benefits to Claimant. For the reasons set forth below, we affirm.
Claimant was employed as a part-time flagger with Flagger Force (Employer). (Certified Record (C.R.), Item No. 10 at 4.) Employer terminated Claimant's employment on February 7, 2013, and Claimant applied for unemployment compensation benefits. (C.R., Item No. 2) The Altoona UC Service Center (Service Center) issued a Notice of Determination, finding Claimant to be ineligible for compensation benefits under Section 402(e) of the Unemployment Compensation Law (Law), based on willful misconduct. (C.R., Item No. 5.) Claimant appealed the Service Center's determination. (C.R., Item No. 6.)
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 claimant shall be ineligible for compensation for any week in which the claimant's unemployment is due to "willful misconduct in connection with his work."
Claimant and Employer testified at an evidentiary hearing before a Referee on April 4, 2013. (C.R., Item No. 10.) The sole issue before the Referee was whether Claimant was discharged from employment for willful misconduct in connection with his work. (C.R., Item No. 11.) At the hearing, Employer testified that Claimant was discharged for violating four safety violations in one day:
He first was sitting down while actively flagging. He also was facing the wrong direction of traffic, he was facing away from traffic. He had his traffic control device in the incorrect hand. And also he was not using his [two-way] radio along with his partner [who] was not as well.(C.R., Item No. 10 at 5.) Employer further testified that it gave Claimant an employee handbook at the time of hire. Employer also went over the employee handbook during training. The handbook contained Employer's policies, including one prohibiting "any act of misconduct, incompetence or violation of this handbook which may in management's sole discretion be grounds for disciplinary action up to or including termination of employment." (Id. at 5-9.) Employer also provided photos purporting to show Claimant engaged in violations of the policies. (Id. at 9-10.)
In response, Claimant testified that it was "freezing" on the day that the incidents took place. (Id. at 14.) He stated that he sat down for "five minutes at the most," and he sat only because his knee was bothering him. (Id.) Claimant also testified that he did not use his walkie-talkie because the other flagger with whom he was working did not have a working walkie-talkie. (Id.) Claimant stated that he had the traffic control device in the wrong hand because it was cold and he had to alternate hands. (Id. at 19-20.) He testified that he did not know that he was facing the wrong direction while directing traffic, that was the way he had always done it and no one had corrected him, and that he could not recall being taught the proper way to face while directing traffic. (Id. at 17-22.)
Following the hearing, the Referee concluded that Claimant had engaged in willful misconduct in connection with his work. (Id.) The Referee reasoned that Employer provided evidence to show that Claimant violated four different safety procedures, and Claimant should have been aware that a failure to follow those procedures could result in an immediate discharge. (Id.) Further, the Referee determined that Claimant did not show good cause for his violation of Employer's safety procedures. (Id.) Thus, the Referee affirmed the Service Center's determination denying Claimant benefits. (Id.)
Claimant appealed to the Board. (C.R., Item No. 12.) The Board affirmed the Referee's decision denying Claimant benefits. (C.R., Item No. 15.) In doing so, the Board made the following findings of fact:
1. The claimant filed an Application for Benefits dated October 21, 2012.
2. The claimant was last employed as a part-time flagger with Flagger Force, earning $11.50 per hour and working an average of thirty (30) hours per week. The claimant was employed from
October 15, 2012[,] until February 7, 2013, his last day worked.
3. The employer has various policies of which the claimant was aware.
4. In the employee handbook, the claimant was informed that, "The following kinds of conduct are absolutely prohibited and could lead to termination: ... (13) Violation of any and all safety rules."
5. The claimant received training on how to perform his duties as a flagger.
6. On February 7, 2013, the claimant was performing the duties of a flagger during road construction activity.
7. The employer received a complaint from a member of the general public alleging that the claimant was sitting down while performing his flagger duties.
8. The employer sent out an inspector to investigate.
9. While performing his duties as a flagger, the claimant violated safety procedures, including sitting while on the job, failing to face the direction of traffic for which he was responsible, using the improper hand while holding the flagger sign, and failing to use his walkie-talkie.
10. The claimant alleges that his knee was bothering him and that he had to sit down temporarily.
11. The claimant did not utilize his walkie-talkie because the other flagger's walkie-talkie did not work.
12. The claimant did not contact the employer by his cell phone and inform the employer of either of these alleged concerns.
13. The claimant is supposed to have a functioning cell phone while on duty and he is supposed to contact the employer by cell phone if any emergency concerns, like a non-functioning walkie-talkie or health problems[,] arise. The claimant was informed of this requirement during the hiring process.(C.R., Item No. 15.)
14. The claimant alleges that his cell phone was in his truck but the battery had died.
15. The claimant alleges that he was not aware that he was supposed to face the traffic for which he was responsible.
16. The claimant alleges that he had the sign in the wrong hand because his hand was cold, and he needed to change hands temporarily to warm up his hand.
17. This was a safety concern because if the sign was in the wrong hand, and if the claimant was facing the correct way, it could obstruct his view of traffic.
18. The claimant was discharged for the above safety violations.
The Board found Employer's testimony to be credible and concluded that Claimant's actions rose to the level of willful misconduct. The Board found Claimant's testimony to be incredible:
The Board does not find credible [Claimant's] assertions that he had to sit down while performing his duties for medical reasons, that he was not aware that he was supposed to face the traffic he controlled, that he had to use the incorrect hand due to the cold[,] [the] fact[] that his cell phone was dead, and that he could not contact the employer as required to raise any of his concerns.(Id.) Further, the Board found that Claimant did not have good cause for his multiple safety violations. As a result, the Board determined that Claimant was ineligible to receive unemployment compensation benefits under Section 402(e) of the Law. Claimant now petitions this Court for review.
On appeal, Claimant essentially argues that the Board committed an error of law by concluding that Claimant's actions constituted willful misconduct. Section 402(e) of the Law provides, in part, that an employee shall be ineligible for compensation for any week in which "his unemployment is due to his discharge or temporary suspension from work for willful misconduct connected with his work." The employer bears the burden of proving that the claimant's unemployment is due to the claimant's willful misconduct. Walsh v. Unemployment Comp. Bd. of Review, 943 A.2d 363, 369 (Pa. Cmwlth. 2008). The term "willful misconduct" is not defined by statute. The courts, however, have defined "willful misconduct" as:
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. --------
(a) wanton or willful disregard for an employer's interests, (b) deliberate violation of an employer's rules, (c) disregard for standards of behavior which an employer can rightfully expect of an employee, or (d) negligence indicating an intentional disregard of the employer's interest or an employee's duties or obligations.Grieb v. Unemployment Comp. Bd. of Review, 827 A.2d 422, 425 (Pa. 2003). Whether or not an employee's actions amount to willful misconduct is a question of law subject to review by this Court. Nolan v. Unemployment Comp. Bd. of Review, 425 A.2d 1203, 1205 (Pa. Cmwlth. 1981).
Willful misconduct does not require proof of actual malice on the part of the employee. Id. Instead, "all that is required is an indication of conscious wrongdoing or negligence in such a degree or recurrence as to manifest culpability." Id. Failure to follow an employer's safety rules is willful misconduct warranting denial of benefits. Moran v. Unemployment Comp. Bd. of Review, 973 A.2d 1024, 1030 (Pa. Cmwlth. 1981). However, where an employee's action is justifiable or reasonable under the circumstances, it cannot be considered willful misconduct. Simpson v. Unemployment Comp. Bd. of Review, 450 A.2d 305, 308 (Pa. Cmwlth. 1982), cert. denied, 464 U.S. 822 (1983). "In other words, if there was 'good cause' for the employee's action, he cannot be deemed guilty of willful misconduct." Id.
Here, Claimant does not deny any of the acts which Employer deemed violations of Employer's safety policies. (C.R., Item No. 10 at 14-22.) Claimant admitted to receiving training, but simply stated that he could not remember whether or not he was taught the proper way to direct traffic. (Id. at 22.) Claimant also admitted that he knew that he was supposed to hold the traffic control device in his right hand only. (Id. at 20.) Furthermore, Claimant signed a written acknowledgement of receipt of the employee handbook, containing the various safety rules that Employer discharged Claimant for violating. (C.R., Item No. 2.) Claimant was aware of the safety policies and chose to violate them. Thus, the Board did not err in concluding that Claimant's violations of Employer's policies amount to willful misconduct.
Claimant acknowledges Heitczman v. Unemployment Compensation Board of Review, 638 A.2d 461 (Pa. Cmwlth.), appeal denied, 648 A.2d 791 (Pa. 1994), and Moran, where this Court held that a failure to follow the employer's work rule constitutes willful misconduct. Claimant, however, tries to distinguish this case from Heitczman and Moran by repeatedly pointing out that, unlike the claimants in those cases, he had not received a disciplinary warning prior to being discharged. Claimant's attempt to distinguish his case from those is unavailing, because this Court has previously held that an advance warning is not a precondition before discharge for willful misconduct. Hartley v. Unemployment Comp. Bd. of Review, 397 A.2d 477, 478 (Pa. Cmwlth. 1981).
Claimant argues that even if his conduct did amount to willful misconduct, he had good cause because it was cold and his knee was bothering him. The Board, however, did not find Claimant's reasoning for violating the policies to be credible, and, thus, it did not find that there was good cause for the violations. The Board is the ultimate fact finder and is entitled to make credibility determinations. Peak v. Unemployment Comp. Bd. of Review, 501 A.2d 1383, 1386 (Pa. 1985). Further, questions of credibility are not subject to reevaluation on judicial review. Id. at 1388. The Board determined that Claimant was not credible, and this Court will not re-evaluate the Board's credibility determination. Thus, the Board did not commit an error of law by concluding that Claimant was discharged for engaging in willful misconduct in connection with his work.
For the reasons discussed above, the order of the Board is hereby affirmed.
/s/_________
P. KEVIN BROBSON, Judge ORDER
AND NOW, this 18th day of July, 2014, the order of the Unemployment Compensation Board of Review is AFFIRMED.
/s/_________
P. KEVIN BROBSON, Judge