Opinion
No. 729 C.D. 2012
01-14-2013
Stephen Brennan, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE LEAVITT
Stephen Brennan (Claimant) petitions for review of an adjudication of the Unemployment Compensation Board of Review (Board) denying his application for benefits. In doing so, the Board affirmed the Referee's determination that Claimant, a salesman, violated two work rules. He failed to remove expired food products from the shelves of stores he serviced, and he failed to rotate products so that older products would be sold first. Claimant contends there was insufficient evidence presented that the violations actually occurred after he received a warning about this conduct and, thus, the record does not support a finding of willful misconduct pursuant to Section 402(e) of the Unemployment Compensation Law (Law). Concluding that sufficient evidence was presented to show a violation of work rules, we affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(e). It provides, in relevant part, that "[a]n employe shall be ineligible for compensation for any week ... [i]n which his unemployment is due to his discharge or temporary suspension from work for willful misconduct connected with his work." 43 P.S. §802(e).
Claimant was employed full-time by Herr's Foods Inc. (Employer) as a route salesman for approximately one year. He delivered Employer's products to merchants and was paid $550 per week, plus a 12% commission. Claimant was discharged on October 24, 2011, for not rotating food products and for failing to remove expired products from store shelves.
Claimant applied for unemployment compensation benefits, claiming he was discharged for lack of work. Employer responded that Claimant was discharged for repeatedly failing to conform to known work rules. The UC Service Center denied benefits, finding that Claimant had violated work rules and had not shown good cause for the violations. Claimant appealed, and a hearing was held before a Referee.
Claimant was also assessed a fault overpayment for benefits he had received based on his claim that he was discharged for lack of work. That finding was not appealed to this Court.
Frank Pintozzi, Employer's branch manager, testified about Claimant's discharge. He explained that Employer sells snack foods at numerous retail locations. It was Claimant's job to deliver and stock these products on the shelves of forty stores. Proper stocking required Claimant to rotate the items on the shelves by placing newer items in back so that older products would sell before they became stale. Claimant was also required to remove any items for which the sell by date had expired.
Pintozzi offered into evidence the job instruction sheet given to Claimant. It provided step-by-step guidelines for Claimant to follow each time he serviced a store. It specified that
[t]he single most important thing you can do to control returns is to rotate the stock every time you serve the account. Make this a habit you absolutely never break no matter what the circumstances.Certified Record (C.R. ___), Service Center (S.C.) Exhibit 8 at B-4. The instruction sheet also directed employees to "[r]emove from the rack and shelves every package that bears a date earlier than the date you are next scheduled to serve this account." C.R., S.C. Exhibit 8 at B-2 (emphasis omitted). Pintozzi also presented Employer's policy manual and a signed receipt by Claimant showing he had received the manual. It provides that an employee may be terminated for "[f]ailure to perform job responsibilities." C.R., S.C. Exhibit 7.
On September 27, 2011, Pintozzi went to the stores Claimant serviced and found that products had not been rotated. He confronted Claimant about this situation, and Claimant responded he would correct the problem. However, when Pintozzi checked two days later, he found that products had not been rotated. He also found expired products remained on the shelves. On October 5th, Claimant received a written warning, noting that 20 bags of products with August expiration dates, totaling $54.39, had been discovered at two of the stores serviced by Claimant. The written warning directed Claimant "to have his route 100% cleaned up and rotated" by October 14th. Notes of Testimony (N.T. ___), Exhibit 1.
Claimant went on vacation on October 10th. Pintozzi learned that Claimant had not properly rotated products before leaving, and on October 24th he fired Claimant for the stated reasons that he had left $100 of expired product on the shelves; failed to comply with the October 5th warning; and failed to remove all expired products from the shelves before leaving for vacation. Claimant did not offer Pintozzi any explanation or justification for his conduct.
The record does not indicate the exact date Claimant returned from vacation. However, Claimant does not dispute that he returned after the October 14th deadline had lapsed.
Lawrence Bythrow, Employer's district manager, also testified. Bythrow explained that after Claimant left for vacation, he took over his route. N.T. 13-14. He discovered that products had not been properly rotated and that products, with a value of $100, had expired a month earlier.
Claimant testified. He contended that he properly rotated the food products, although he may have missed some on occasion. He denied any responsibility for the stale inventory found by Bythrow, asserting that it was not his fault. Between receiving his written warning on October 5th and leaving for vacation on October 10th, Claimant stated that he serviced every store on his route. When asked why Bythrow had found expired food products on the shelves, Claimant replied that $100 of stale food product was not astronomical. In any case, he asserted that it was Bythrow's responsibility to correct any restocking issues during Claimant's absence.
The Referee found that Employer had work rules concerning rotating products and removing them after their expiration date; that Claimant was aware of these rules; that Claimant had been warned about his need to comply; and that Claimant did not comply. The Referee concluded these facts established Claimant's willful misconduct.
Claimant appealed to the Board, asserting that Employer's evidence did not establish willful misconduct. The Board affirmed the Referee's decision without further discussion. Claimant then petitioned for this Court's review.
On appeal Claimant raises one issue. He asserts that Employer's evidence did not establish that his shelves were inspected on October 14th, the date set forth in the written warning. Accordingly, the record is inadequate to prove willful misconduct.
Our review is limited to determining whether constitutional rights were violated, errors of law committed or whether the findings of fact are supported by the evidence. Renda v. Unemployment Compensation Board of Review, 837 A.2d 685, 691 n.4 (Pa. Cmwlth. 2003). --------
We begin with a review of the law on willful misconduct. Although not defined in the Law, the courts have established that it means the following:
(1) an act of wanton or willful disregard of the employer's interest;Altemus v. Unemployment Compensation Board of Review, 681 A.2d 866, 869 (Pa. Cmwlth. 1996). It is the employer's burden to establish that a claimant's conduct constituted willful misconduct. Conemaugh Memorial Medical Center v. Unemployment Compensation Board of Review, 814 A.2d 1286, 1288 (Pa. Cmwlth. 2003). Where willful misconduct is based upon the violation of a work rule, the employer must establish the existence of the rule, its reasonableness, and that the employee was aware of the rule. Bishop Carroll High School v. Unemployment Compensation Board of Review, 557 A.2d 1141, 1143 (Pa. Cmwlth. 1989). Once employer meets this burden, the burden shifts to the claimant to prove that the rule was unreasonable or that he had good cause for violating the rule. Gillins v. Unemployment Compensation Board of Review, 534 Pa. 590, 601 n.3, 633 A.2d 1150, 1156 n.3 (1993).
(2) a deliberate violation of the employer's rules;
(3) a disregard of standards of behavior which the employer has a right to expect of an employee; [or]
(4) negligence indicating an intentional disregard of the employer's interest or of the employee's duties and obligations to the employer.
Claimant acknowledges that he was directed to rotate the products on his store shelves and to discard all expired items by October 14th. He argues that because Employer did not present evidence about the state of his inventory on that date, Employer did not prove that he failed to follow the directive. Further, once he went on vacation, he was relieved of any responsibility for his inventory.
The Board counters that the record is adequate. Claimant testified that after the October 5th warning he visited every store before leaving for vacation. However, when Bythrow took over for Claimant, he found expired food products at numerous locations; at one location he found food products that had been expired for over a month. Whether or not Employer checked for discrepancies on October 14th is irrelevant. Bythrow would not have found products that had expired in September if Claimant had done his job by October 14th. We agree with the Board that Bythrow's testimony established that Claimant failed to follow the specific October 5th directive.
Employer's evidence proved the existence of work rules, and Claimant did not present good cause for violating them. At no point did Claimant contend he did not have sufficient time to examine all of the food products after receiving the directive. Instead, he claimed that because he was on vacation, his store shelves became Bythrow's problem. The Referee found this statement of Claimant not credible and, in any case, unfounded.
Accordingly, the order of the Board is affirmed.
/s/_________
MARY HANNAH LEAVITT, Judge ORDER
AND NOW, this 14th day of January, 2013, the order of the Unemployment Compensation Board of Review, dated March 26, 2012, in the above-captioned matter is hereby AFFIRMED.
/s/_________
MARY HANNAH LEAVITT, Judge