Opinion
No. 2085 C.D. 2008.
Submitted: March 20, 2009.
Filed: July 2, 2009.
BEFORE: SMITH-RIBNER, Judge; JUBELIRER, Judge; KELLEY, Senior Judge.
OPINION NOT REPORTED
Remco, Inc. (Employer) petitions for review from an order of the Unemployment Compensation Board of Review (Board), which affirmed the referee's order granting benefits to Kevin R. Breidigan (Claimant). We affirm.
Claimant worked for Employer in its Mechanicsburg office as a fulltime food service technician from June 26, 2006 until his last day of work on May 1, 2008. Claimant filed an application for unemployment compensation benefits. Employer challenged Claimant's application. By notice of determination dated August 14, 2006, Claimant's application for benefits was denied by the UC Service Center on the basis that Claimant was ineligible for benefits under Section 402(e) of the Unemployment Compensation Law (Law) as a result of willful misconduct. Claimant appealed the notice of determination and the matter was heard before a referee. The referee reversed the notice of determination and granted unemployment compensation benefits to Claimant. From this decision, Employer filed an appeal with the Board.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897,as amended, 43 P.S. § 802(e).
The Board adopted the findings and conclusions of the referee, which are set forth as follows. Employer has reasonable policies among which is: "There is no substitute for good customer service in fostering our relationships with customers regardless of the department for which you work, what you do and say has an impact, good or bad; you are the company." The policy prohibits any conduct, which would demonstrate poor customer service. Employer's policy also prohibits being discourteous to a customer or a fellow employee. Employer's policy prohibits damage to company property through abuse, indifference, negligence, or carelessness. Claimant was aware or should have been aware of Employer's policies.
On October 10, 2007, Claimant was given a written warning for poor customer service and laying tools on a cutting board, an unsanitary working condition, at a Sheetz Convenience Store where Claimant was providing service. On February 26, 2008, Employer received a complaint from a Giant Food Store where Claimant had done some repair work on hot water lines connected to hot food cases, which resulted in their supervisor having to return to the worksite and make corrections to the work done by Claimant. On March 3, 2008, Claimant was given a written warning regarding his improper storage of company parts and company tools in the back of his truck and having it poorly organized, which could cause damage to the parts and instruments. Claimant explained to Employer that part of the reason his truck was poorly organized was because he had requested storage units, which would have prevented some of the extra Freon bottles from being stored in the manner that Employer found objectionable. On April 15, 2008, a manager from Hardee's where Claimant had worked complained to Employer about Claimant's conduct while on the job and requested that Claimant not return to their store.
As a result of the customer service complaints regarding Claimant and the way he interacted with the customers, Claimant's supervisor decided that although Claimant was a good repair technician, he felt Claimant needed to be in a position where he did not deal with customers because he needed supervision when around customers. Claimant's supervisor informed Claimant that his job was in jeopardy and that he had found him a position in Employer's Allentown office where he would be servicing Wawa Food Store accounts in Wildwood, New Jersey until sometime in December. An interview was arranged with Claimant at the Employer's Allentown office to speak to the manager there regarding the transfer to the Allentown office and his work on the Wawa account in New Jersey. When Claimant attended the meeting in Allentown, Claimant explained that he had some reservation accepting the position because of all the travel that might be involved or having to stay overnight for several days in a row. Claimant made it clear to the manager that he didn't really want to take the job, if it meant working out of the Allentown office. When Claimant called his supervisor later in the day to talk about his interview, Claimant was informed that because Claimant did not appear interested in accepting the Allentown job, they were not going to offer him the job. Later that day, Claimant's supervisor discharged Claimant as a result of Claimant keeping the company truck and inventory in poor condition, causing inventory issues and tool and parts destruction, poor workmanship causing customer complaints and repeated call backs, and the April 15, 2008 incident at Hardee's involving improper treatment of customers causing possible loss of customers that is a repeated issue. Claimant did not voluntarily quit his employment as alleged by two of Employer's witnesses. The Board found the testimony of Claimant to be credible and resolved all conflicts in favor of Claimant.
The Board ultimately concluded that Claimant is not ineligible for benefits under Section 402(b) of the Law. The Board reasoned that the most recent infraction of April 15, 2008 was not considered by Employer significant enough to warrant discharge. Employer, while dissatisfied with Claimant's interaction with customers, found Claimant's work performance to be satisfactory and gave Claimant an opportunity to work out of the Allentown office. Claimant credibly testified that he informed Employer he would accept the new position if the failure to do so would result in his discharge. However, Employer withdrew the offer as a result of Claimant's lack of enthusiasm of the offered transfer. The prior incidents cited by Employer for termination were remote in time to Claimant's discharge and were not wanton or willful. Employer ultimately discharged Claimant due to his lack of enthusiasm for the new position. By decision dated October 3, 2008, the Board affirmed the referee's decision and awarded benefits to Claimant. Employer then filed the instant appeal.
This Court's scope of review is limited to determining whether constitutional rights were violated, an error of law was committed, or necessary findings of fact are not supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704; Kirkwood v. Unemployment Compensation Board of Review, 525 A.2d 841 (Pa.Cmwlth. 1987).
Employer raises the following issues for our review:
1. Whether the Board erred in holding that Claimant did not commit willful misconduct justifying termination.
2. Whether the Board erred in holding that Claimant did not voluntarily quit his employment with Employer.
The Board is the ultimate fact finder and the arbiter of witness credibility. Peak v. Unemployment Compensation Board of Review, 509 Pa. 267, 501 A.2d 1383 (1985); Rapid Pallet v. Unemployment Compensation Board of Review, 707 A.2d 636 (Pa.Cmwlth. 1998). When the Board's findings of fact are supported by substantial evidence they are binding on this Court even though evidence was also introduced to the contrary. Unemployment Compensation Board of Review v. Jones, 352 A.2d 574 (Pa.Cmwlth. 1976). The fact that conflicting evidence is presented does not mean that there is no substantial evidence to support the eventual finding since it is the function of the Board, and not this Court, to resolve questions of credibility and conflicts in testimony. Geesey v. Unemployment Compensation Board of Review, 381 A.2d 1343 (Pa.Cmwlth. 1978). Our duty as an appellate court is to examine the testimony in a light most favorable to the party in whose favor the Board has found, giving that party the benefit of all inferences that can logically and reasonably be drawn from the testimony to see if substantial evidence for the Board's conclusions exists. Wheelock Hatchery, Inc. v. Unemployment Compensation of Review, 648 A.2d 103 (Pa.Cmwlth. 1994).
Section 402(e) of the Law provides in pertinent part:
An employee 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 the act.
43 P.S. § 802(e). The term "willful misconduct" is not defined in the Law. Our Supreme Court has defined "willful misconduct" as an act of wanton or willful disregard of the employer's interests, a deliberate violation of the employer's rules, a disregard of the standards of behavior which the employer has a right to expect of an employee, or negligence indicating an intentional disregard of the employer's interests or of the employee's duties and obligations to the employer. Navickas v. Unemployment Compensation Board of Review, 567 Pa. 298, 304, 787 A.2d 284, 288 (2001).
Whether an employee's conduct rises to the level of willful misconduct is a matter of law subject to appellate review. Id.; Miller v. Unemployment Compensation Board of Review, 405 A.2d 1034 (Pa.Cmwlth. 1979). The burden of proving willful misconduct rests with the employer.Navickas; Brant v. Unemployment Compensation Board of Review, 477 A.2d 596 (Pa.Cmwlth. 1984). Once an employer has shown that the employee violated a work rule, the employee may show that his conduct was justified.Kalenevitch v. Unemployment Compensation Board of Review, 531 A.2d 590 (Pa.Cmwlth. 1987), petition for allowance of appeal denied, 517 Pa. 625, 538 A.2d 878 (1988).
Here, Employer does not challenge the Board's findings, but only the Board's legal conclusions. As a result, the Board's findings are conclusive on appeal. Glassmire v. Unemployment Compensation Board of Review, 856 A.2d 269 (Pa.Cmwlth. 2004). There is no dispute that Employer had received numerous complaints about Claimant. However, Employer did not discharge Claimant as a result of those complaints. Instead, Employer offered Claimant another position where his interaction with customers would be limited. Claimant credibly testified that while he was not happy about the new position, he informed Employer that he would accept it if the failure to do so would result in his discharge. The Board found that Claimant was discharged because of his lack of enthusiasm over the new position, not the prior incidents, which were temporally remote from the ultimate discharge. See Raimondi v. Unemployment Compensation Board of Review, 863 A.2d 1242 (Pa.Cmwlth. 2004) (Where there is an unexplained substantial delay between the claimant's misconduct and the employer's act to terminate the claimant, the remoteness doctrine will preclude an employer from seeking a denial of benefits based on allegations of willful misconduct). While an employer certainly has the right to discharge an employee for any reason whatsoever, to deny unemployment compensation benefits to a claimant, an employer must demonstrate that the employee was discharged for willful misconduct. Employer has not met this burden here. We, therefore, conclude that the Board did not err in determining that Employer failed to establish that Claimant was terminated for willful misconduct.
Alternatively, Employer argues that the Board erred in holding that Claimant did not voluntarily quit his employment. We disagree.
Section 402(b) of the Act, 43 P.S. § 802(b), provides:
An employee shall be ineligible for compensation for any week —
(b) In which his unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature irrespective of whether or not such work is in "employment" as defined in this Act . . . :
In a voluntary quit case, this court must first determine whether the facts surrounding a claimant's separation from employment constitute a voluntary resignation or a discharge. Charles v. Unemployment Compensation Board of Review, 552 A.2d 727 (Pa.Cmwlth. 1989); Maines v. Unemployment Compensation Board of Review, 532 A.2d 1248 (Pa.Cmwlth. 1987). This is a question of law subject to our review. Id.
Here, the Board found that Claimant credibly testified that he informed Employer he would accept the new position if failure to do so would result in his discharge. The Board further found that Employer withdrew the offer as a result of Claimant's lack of enthusiasm of the offered transfer. Based upon these findings, which are supported by the record, Claimant did not refuse to accept the new position. Thus, we conclude that the Board properly determined that Claimant did not voluntarily terminate his employment.
Accordingly, the order of the Board is affirmed.
ORDER
AND NOW, this 2nd day of July, 2009, the order of the Unemployment Compensation Board of Review, at Decision No. B-476848, dated October 3, 2008, is AFFIRMED.
I concur with the result of the majority opinion. I write separately, however, because I disagree with the legal basis upon which the majority opinion affirms the Board's decision.
The majority rightfully concludes that the Board was correct in determining that Employer failed to establish that Claimant was terminated for willful misconduct. The majority explains:
The Board found that Claimant was discharged because of his lack of enthusiasm over the new position, not the prior incidents, which were temporally remote from the ultimate discharge. See Raimondi v. Unemployment Compensation Board of Review, 863 A.2d 1242 (Pa.Cmwlth. 2004) (Where there is an unexplained substantial delay between the claimant's misconduct and the employer's act to terminate the claimant, the remoteness doctrine will preclude an employer from seeking a denial of benefits based on allegations of willful misconduct).
Remco, Inc. v. Unemployment Compensation Board of Review, No. 2085 C.D. 2008, slip op. at 6-7 (Pa.Cmwlth. July 2, 2009). However, I do not believe the basis of the Board's decision is the delay between the time Employer received complaints or issued written warnings regarding Claimant's conduct and Employer's termination. Rather, I believe the basis of the Board's decision relates to the fact that Employer decided to retain Claimant notwithstanding Claimant's prior conduct.
The Board found that Employer issued written warnings to Claimant for poor customer service and creating an unsanitary working condition on October 10, 2007. (Finding of Fact (FOF) ¶ 7.) On February 26, 2006, Giant Food Stores issued a complaint against Claimant for failing to make proper repairs to equipment. (FOF ¶ 8.) Employer issued Claimant a written warning on March 3, 2008, for improperly storing company parts and equipment. (FOF ¶ 9.) Finally, the last incident occurred on April 15, 2008, when a manger from Hardees made a complaint about Claimant's conduct and requested that Claimant not return to their store. Notwithstanding these incidents, Employer offered Claimant a new position with the company in which his interaction with customers would be limited. Because Employer offered Claimant a new position after all of these incidents, it is clear that Employer did not consider Claimant's prior conduct sufficient to warrant dismissal for wanton or willful misconduct. Employer terminated Claimant only after Claimant exhibited a lack of enthusiasm in accepting the new position. (Board Order.) Since there is no allegation that "exhibiting a lack of enthusiasm" for a new position in this situation is willful misconduct, Claimant was not terminated for willful misconduct. As such, the remoteness doctrine had nothing to do with the Board's decision to grant benefits to Claimant.
I, therefore, agree with the Board that this Court's decision in Keg Butcher Block v. Unemployment Compensation Board of Review, 450 A.2d 782 (Pa.Cmwlth. 1982), is analogous to the present situation. In that case, the employer had held a meeting with the claimant to discuss the claimant's poor work performance and attitude problems; however, at the end of the meeting, the employer decided to retain the claimant. Id. at 783. After the meeting, the claimant's wife called another employee and made threatening remarks. Id. The employer then discharged the claimant for the telephone call and his prior work performance and attitude problems. However, this Court agreed with the Board that the claimant's prior conduct could not be used to disqualify the claimant after the employer had already decided to retain the claimant, despite those issues. Id. at 784-85. The claimant received benefits because this Court agreed with the Board that the claimant did not commit willful misconduct with regard to his wife's telephone call.
Like Keg Butcher Block, in this case, Employer decided to retain Claimant, but in a different position, after the incidents for which Employer asserts that Claimant was discharged. Essentially, in the present case and in Keg Butcher Block, it was not the remoteness doctrine that precluded the employers from seeking a denial of benefits based on willful misconduct; rather, it was the employers' decisions to retain the claimants despite their prior conduct that precluded such conduct from being used to disqualify the claimants from receiving benefits. Since the conduct that truly precipitated the claimants' termination was not willful misconduct, the claimants were entitled to benefits.
Accordingly, because Claimant was not terminated for willful misconduct, I concur in the result that the order of the Board be affirmed.