Opinion
No. 434 C.D. 2014
09-26-2014
Ronald L. Poff, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY PRESIDENT JUDGE PELLEGRINI
Ronald L. Poff (Claimant) petitions for review of the order of the Unemployment Compensation Board of Review (Board) that affirmed the decision of a Referee finding him ineligible for benefits under Section 402(e) of the Unemployment Compensation Law (Law). We affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(e). That section provides, in relevant part:
An employe shall be ineligible for compensation for any week -
* * *
(e) In which his unemployment is due to his discharge or temporary suspension from work for willful misconduct connected with his work, irrespective of whether or not such work is "employment" as defined in this act.
Claimant was employed as a full-time laborer/dock worker by ABF Freight System, Inc. (Employer) until he was suspended and ultimately discharged for willful misconduct for pushing the local union's president while at a union meeting on Employer's dock in violation of Employer's policy prohibiting threats, threatening behavior or acts of violence against employees, visitors, guests or other individuals on Employer's property. Claimant filed for benefits with the UC Service Center, which determined that Claimant's actions did not constitute willful misconduct and that he was not ineligible for benefits under Section 402(e) of the Law and Employer appealed.
The burden of proving willful misconduct rests with the employer. Guthrie v. Unemployment Compensation Board of Review, 738 A.2d 518, 521 (Pa. Cmwlth. 1999). Willful misconduct has been defined as: (1) wanton or willful disregard for an employer's interests; (2) deliberate violation of an employer's rules; (3) a disregard for the standards of behavior which an employer can rightfully expect of an employee; or (4) negligence indicating an intentional disregard of the employer's interest or an employee's duties or obligations. Philadelphia Parking Authority v. Unemployment Compensation Board of Review, 1 A.3d 965, 968 (Pa. Cmwlth. 2010). When a claimant is terminated for a work-rule violation, the employer has the burden to establish that the rule existed, the claimant knew of the rule, and the claimant violated the rule. Id. If the employer satisfies its burden, the burden shifts to the employee to show that he had good cause for his conduct. Grand Sport Auto Body v. Unemployment Compensation Board of Review, 55 A.3d 186, 190 (Pa. Cmwlth. 2012). A claimant has good cause if his actions are justifiable and reasonable under the circumstances. Id. A single workplace altercation involving pushing or shoving can constitute willful misconduct as a matter of law. Wisniewski v. Unemployment Compensation Board of Review, 383 A.2d 254, 255 (Pa. Cmwlth. 1978). Whether an employee's conduct constitutes willful misconduct is a question of law subject to our review. Grieb v. Unemployment Compensation Board of Review, 827 A.2d 422, 426 (Pa. 2003).
Before the Referee, Employer's recruiter training specialist David Ayers (Ayers) testified that on June 7, 2013, union representatives came to his office and informed him of an incident of workplace violence involving Claimant and the union's president. Ayers stated that Employer has security cameras on the dock and he reviewed video of the incident which was played for the Referee at the hearing. While the video was viewed by the Referee and the parties, Ayers identified Claimant and described how he appeared angry about something, approached the union's president and pushed the union's president. Ayers also identified Employer's violence prevention policy that prohibits threats, threatening behavior or acts of violence against employees, visitors, guests or other individuals by anyone on Employer's property which could result in immediate discharge. Finally, Ayers identified Article 44 of the National Master Freight Agreement which also provides for immediate discharge for specified acts.
Claimant acknowledged that he was aware of Employer's workplace violence prevention policy and that its violation could lead to disciplinary action. Claimant stated that he was present at a rank and file meeting on June 7, 2013, and that he pushed the union's president because he was provoked. He explained that the union was telling its members that they had to vote "yes" on the contract and that he got agitated about it because they had the right to vote "no," and that some words were exchanged between him and the union's president. He testified that they were conducting union rank and file business on company property and that this was a union issue and not a company issue. Claimant testified that the incident wasn't a big deal and that he was just standing up for himself.
Specifically, Claimant testified, in pertinent part, as follows:
R Did you push an individual during that meeting?(Transcript of Referee's 8/12/13 hearing at 13-14).
C Supposedly.
R Why did you push....
C We made contact.
R Why did you push him?
C Well, I was provoked.
R How were you provoked?
C They were telling us we have to vote yes on this contract, and I got a little agitated about it. I said, what do you mean we have to vote yes on this contract. We have a right to vote no. And, some words crossed, and he stepped towards me, and I stepped towards him. And, what I'm seeing here, is this is union rank and file business done on company property without permission. This is a union rank and file issue, not a company issue. And, all the workplace violence issues is always about an employee against another employee. Even in this....
R So, the individual that you pushed, he wasn't an employee?
C No, he was a - I [did]n't know he was president of a local union. I always thought he was another businessman.
R Anything else that you want to tell me, sir?
C After this happened, like, it wasn't that big of a deal. I was just standing up for what I believe in, and I don't think we would have a country if somebody didn't stand up for what they believe in. This had nothing to do with [Employer]. This was a union rank and file issue, not a company issue.
Based on the evidence presented, the Referee determined that Employer sustained its burden of proving that Claimant is ineligible for benefits, explaining:
In the present case, the credible testimony of the employer establishes that it has a policy which prohibits acts of violence against other individuals including visitors and guests on company property. Violation of the policy is grounds for disciplinary action up to and including discharge. The claimant was aware of the policy. The claimant acknowledges that on June 7, 2013, he pushed another individual. The Referee rejects the Claimant's assertion that he was provoked by being told that he had to vote for a proposed contract and the individual stepped towards him. Even if the claimant's allegations are accepted as true, this does not rise to the level of provocation to justify a physical assault. Moreover, the Referee rejects the claimant's assertion that the employer has no business disciplining him as it was not an employer function. Rather[,] the Claimant asserts that it was a rank and file union meeting. There is no dispute that the attack occurred on company premises. The individual being attacked qualifies at least as a guest or visitor. Therefore, the claimant's actions are covered by the employer's policy. Based on the above, the employer established that it suspended and discharged the claimant for actions that constitute willful misconduct connected with the work and benefits will be disallowed under Section 402(e) of the Law.(Referee's 10/31/13 Decision at 2). As a result, the Referee reversed the UC Service Center's determination and denied Claimant benefits.
The Referee notes that the employer has not provided a copy of the video to be placed in the record. Therefore, the Referee's determination is not based in any part upon the video; rather, it is based upon the testimony of the parties and in particular the admission of the claimant.
Claimant appealed the Referee's decision to the Board, which affirmed, specifically adopting and incorporating the Referee's findings and conclusions. (Board's March 12, 2014 Order). This appeal by Claimant followed in which he argues that the Board's finding of willful misconduct is not supported by substantial evidence because Employer failed to offer any evidence other than unsubstantiated hearsay to support its finding; the Board erred in finding that Claimant was ineligible because Employer failed to follow its own progressive disciplinary policy; and the Referee failed to sufficiently assist Claimant at the hearing as required by the Board's regulations.
The Board is the ultimate finder of fact in unemployment compensation proceedings. Peak v. Unemployment Compensation Board of Review, 501 A.2d 1383, 1389 (Pa. 1985); Chamoun v. Unemployment Compensation Board of Review, 542 A.2d 207, 208 (Pa. Cmwlth. 1988). Issues of credibility are for the Board, which may either accept or reject a witness' testimony whether or not it is corroborated by other evidence of record. Id. This Court must examine the evidence in the light most favorable to the party who prevailed before the Board, and to give that party the benefit of all inferences that can be logically and reasonably drawn from that evidence. Taylor v. Unemployment Compensation Board of Review, 378 A.2d 829, 831 (Pa. 1977). Findings of fact are conclusive on appeal if the record contains substantial evidence to support the findings. Id. The fact that a witness has presented a version of the facts different from that accepted by the Board is not a basis for reversal if substantial evidence supports the Board's findings. Tapco, Inc. v. Unemployment Compensation Board of Review, 650 A.2d 1106, 1108-09 (Pa. Cmwlth. 1994). "It is irrelevant whether the record contains evidence to support findings other than those made by the fact-finder; the critical inquiry is whether there is evidence to support the findings actually made." Ductmate Industries, Inc. v. Unemployment Compensation Board of Review, 949 A.2d 338, 342 (Pa. Cmwlth. 2008) (citation omitted). As the burdened party with respect to establishing good cause, Claimant had to meet both his burden of production and his burden of persuasion. See Kirkwood v. Unemployment Compensation Board of Review, 525 A.2d 841, 844 (Pa. Cmwlth. 1987). The Board was free to reject Claimant's evidence regarding his good cause, even if it was unrebutted. Carriers Terminal Company v. Unemployment Compensation Board of Review, 449 A.2d 873, 874 (Pa. Cmwlth. 1982).
Our review of the Board's decision 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. Middletown Township v. Unemployment Compensation Board of Review, 40 A.3d 217, 222 n.8 (Pa. Cmwlth. 2012).
The Board did not find that Employer had a progressive discipline policy or that Claimant could only be discharged for the unprovoked assault on an Employer or management supervisor. Claimant bases these arguments on Article 44 of the National Master Freight Agreement between Employer and his union; however, the Board made no findings regarding its existence, its contents or its application to these proceedings. Rather, the Board based its determination of willful misconduct solely on Claimant's violation of Employer's violence prevention policy. Claimant does not argue that the Board erred in this omission or that it was required to make additional findings in this regard or that Employer's violence prevention policy is inapplicable in this case because the incident occurred at a union meeting on Employer's premises. As a result, we cannot address these issues. Moreover, while Article 44 of the National Master Freight Agreement does provide for progressive discipline, it also provides for immediate termination for "unprovoked assault on an Employer or management supervisor," "direct refusal to obey instructions from an authorized management employee," and "certain instances where an employee's ... actions may justify suspension or discharge without a prior warning." (Employer's Exhibit 1 at 2). Further, as explained above, a single workplace altercation involving pushing or shoving can constitute willful misconduct as a matter of law in the absence of an employer's policy or rule prohibiting such conduct. Wisniewski, 383 A.2d at 255. --------
However, Claimant's admission at the Referee's hearing constitutes substantial evidence supporting the Board's finding that he physically pushed the union's president on Employer's premises. Flores v. Unemployment Compensation Board of Review, 686 A.2d 66, 71 (Pa. Cmwlth. 1996); Criswell v. Unemployment Compensation Board of Review, 393 A.2d 1071, 1072-73 (Pa. Cmwlth. 1978).
Likewise, the evidence establishes the existence of Employer's workplace violence prevention policy prohibiting threats, threatening behavior or acts of violence against visitors, guests or other individuals on Employer's property; that its violation could result in immediate termination; and that Claimant was aware of this policy. (Service Center Exhibits 2c, 2d, 2e; Transcript of Referee's 8/12/13 hearing at 6-7, 12-13). As outlined above, that the Board rejected Claimant's proffered good cause for his actions is not subject to our review and is not a basis to reverse the Board's order.
Finally, with respect to the Referee's actions in this case, the essential elements of due process in an administrative hearing are notice and an opportunity to be heard. McFadden v. Unemployment Compensation Board of Review, 806 A.2d 955, 958 (Pa. Cmwlth. 2002). When presented with an unrepresented claimant, due process requires that the referee be more than usually cautious to insure all relevant issues are examined and the parties have an opportunity to fully present their case. Brennan v. Unemployment Compensation Board of Review, 487 A.2d 73, 77 (Pa. Cmwlth. 1985). Moreover, 34 Pa. Code §101.21(a) states that "[w]here a party is not represented by counsel the tribunal before whom the hearing is being held should advise him as to his rights, aid him in examining and cross-examining witnesses, and give him every assistance compatible with the impartial discharge of its official duties." (emphasis added). See also Brennan.
However, the referee is not required to become nor should he assume the role of a claimant's advocate. McFadden, 806 A.2d at 958. The referee is not required to advise an uncounseled claimant on evidentiary questions or points of law or to show any greater deference to an unrepresented claimant than that afforded to one that is represented by counsel. Brennan, 487 A.2d at 77; Lauffer v. Unemployment Compensation Board of Review, 434 A.2d 249, 251 (Pa. Cmwlth. 1981). Rather, the referee has the responsibility to assist a pro se claimant "[s]o that the facts of the case necessary for a decision may be adequately developed to insure that compensation will not be paid in cases in which the claimant is not eligible and that compensation will be paid if the facts, thoroughly developed, entitled the claimant to benefits." Bennett v. Unemployment Compensation Board of Review, 445 A.2d 258, 259-60 (Pa. Cmwlth. 1982) (citation omitted and emphasis in original).
The transcript of the hearing shows that the Referee advised Claimant of his rights, allowed him to cross-examine the witnesses and to object to the admission of evidence, and permitted him to present evidence on the issues and to give a closing argument or statement. Contrary to Claimant's assertion, the transcript demonstrates that when the Referee questioned both Claimant and Ayers, he was merely attempting to thoroughly develop the facts of the case so that he could properly determine whether or not Claimant was entitled to benefits or ineligible under Section 402(e) of the Law. In sum, the Referee conducted the hearing in this matter in a fair and impartial manner as required by 34 Pa. Code §101.21(a).
Accordingly, the Board's order is affirmed.
/s/_________
DAN PELLEGRINI, President Judge ORDER
AND NOW, this 26th day of September, 2014, the order of the Unemployment Compensation Board of Review dated March 12, 2014, at No. B-13-09-D-7233-A, is affirmed.
/s/_________
DAN PELLEGRINI, President Judge