Opinion
No. 906 C.D. 2011
08-07-2012
Carl's Farm Eggs, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH
This case was assigned to the opinion writer on or before January 6, 2012, when President Judge Leadbetter completed her term as President Judge.
Carl's Farm Eggs (Employer) petitions for review of the April 22, 2011 order of the Unemployment Compensation Board of Review (Board), reversing the decision of a referee and holding that Alton Johnson (Claimant) is not ineligible for benefits under section 402(e) of the Unemployment Compensation Law (Law). For the reasons that follow, we affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(e). Section 402(e) provides that an employee shall be ineligible for benefits for any week in which his unemployment is due to his temporary suspension or discharge for willful misconduct connected with his work.
Claimant worked for Employer as a full-time counter person for five years until he was discharged on January 4, 2011, for violating Employer's no call, no show policy. (Findings of Fact Nos. 1, 10.) Claimant filed for unemployment compensation benefits, but the local service center concluded that Claimant had been discharged for reasons that constitute willful misconduct under section 402(e) of the Law and thus was ineligible for benefits. Claimant appealed, and a referee held a hearing on February 22, 2011.
Jeffrey Redel, Employer's owner, testified that he scheduled Claimant to work on January 4, 2011, but Claimant never came in. (Reproduced Record (R.R.) at 8a.) Redel stated that his son, Steve Redel, the manager of Employer's store, called Claimant, who stated that he would be late to work. (R.R. at 8a.) Redel testified that Claimant never showed up and therefore he violated Employer's no call, no show policy. (R.R. at 8a-9a.) Redel acknowledged that the policy was unwritten, but he stated that it was understood by his employees. (R.R. at 9a-10a.) Redel testified that, subsequently, Claimant only indicated that he was absent because "he had to do something with his girlfriend." (R.R. at 9a.) Redel explained that Claimant previously received a warning pertaining to the policy and was discharged for the second violation. (R.R. at 10a.)
Claimant testified that his girlfriend had recently become ill and required a breathing machine. (R.R. at 11a.) He stated that he did not attend work on January 4, 2011, because he had been asked by his girlfriend and her nurse to stay home and observe instructions on how to set up and use his girlfriend's breathing machine. Id. Claimant testified that on January 4, 2011, he called and spoke with Steve Redel, the store manager, at 7:00 a.m. and reported that he would be late. Id. Claimant said that he called again at 7:30 a.m. and told Steve Redel that he would not be reporting to work that day. Id.
Crediting Redel's testimony, the referee found that Claimant did not demonstrate good cause for his absence. (R.R. at 15a.) The referee acknowledged that Claimant was not a no call, no show because he called Employer twice; however, the referee concluded that Claimant's failure to report to work and his failure to report off in advance of his scheduled time was without good cause. Id. Accordingly, the referee affirmed the decision of the local service center that Claimant was ineligible for benefits under section 402(e) of the Law. Id.
Claimant appealed to the Board. The Board credited Claimant's testimony and issued the following relevant findings of fact:
(3) The claimant was scheduled to work on January 4, 2011 at [7:00] a.m.;
(4) the claimant did not appear for work on January 4, 2011;
(5) the claimant's girlfriend is on a breathing machine;
(6) on January 4, 2011, the claimant's girlfriend was receiving an instruction on the breathing machine from her medical provider;
(7) the claimant was asked by the medical provider to stay home and observe the instruction;
(8) the claimant informed the employer that he would not be working on January 4, 2011;
(9) the claimant was previously warned about being a no call, no show from work;(R.R. at 22a-23a.)
(10) the claimant was discharged for allegedly being a no call, no show on January 4, [2011].
The Board's findings of fact incorrectly state that Claimant was scheduled to work at 7:30 a.m. on January 4, 2011. The Board acknowledges in its brief that this was due to a typographical error and Claimant was indeed scheduled to work at 7:00 a.m.
The Board's findings of fact incorrectly state that Claimant was discharged for allegedly being a no call, no show on January 4, 2010, rather than January 4, 2011. The Board acknowledges in its brief that this was due to a typographical error.
The Board then concluded as follows:
Based on the record, the Board concludes that the employer has failed to establish that the claimant was discharged for willful misconduct. Here, the employer established that the claimant was previously warned about being a no call, no show from work. However, for the final absence, the claimant provided credible testimony establishing that he was absent from work on January 4, 2011, for good cause. The claimant also provided credible testimony establishing that he called the employer to report his absence. As such, the Board concludes that the claimant cannot be determined ineligible for benefits.(R.R. at 23a.) Accordingly, the Board issued an order reversing the referee's decision and granting Claimant benefits. Employer then filed the instant petition for review.
Our scope of review in an unemployment compensation appeal is limited to determining whether an error of law was committed, whether constitutional rights were violated, or whether necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.C.S. §704; Hercules, Inc. v. Unemployment Compensation Board of Review, 604 A.2d 1159 (Pa. Cmwlth. 1992).
Employer argues that the Board erred in concluding that Claimant is not ineligible for unemployment benefits under section 402(e) of the Law. Specifically, Employer asserts that: (1) the Board erred in substituting its findings of fact and credibility determinations for those of the referee; and (2) the Board erred in reversing the referee's decision that Claimant did not establish good cause for his absence.
Pursuant to section 402(e) of the Law, an employee is deemed ineligible for unemployment compensation benefits when he has been discharged for willful misconduct connected to his employment. Bruce v. Unemployment Compensation Board of Review, 2 A.3d 667 (Pa. Cmwlth.), appeal denied, 608 Pa. 656, 12 A.3d 753 (2010). Although the Law does not define the term "willful misconduct," our courts have defined it as including: (1) a wanton or willful disregard for an employer's interests; (2) a 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. Navickas v. Unemployment Compensation Board of Review, 567 Pa. 298, 787 A.2d 284 (2001). Whether an employee's conduct constitutes willful misconduct is a question of law subject to our review. Miller v. Unemployment Compensation Board of Review, 405 A.2d 1034 (Pa. Cmwlth. 1979). The burden of proving willful misconduct rests with the employer. Brant v. Unemployment Compensation Board of Review, 477 A.2d 596 (Pa. Cmwlth. 1984).
Where, as here, a claimant is discharged for violation of a work rule or policy, the employer must establish both the existence of a reasonable policy and that the claimant knowingly violated it. Navickas; Guthrie v. Unemployment Compensation Board of Review, 738 A.2d 518 (Pa. Cmwlth. 1999). If the employer meets its burden, the burden shifts to the claimant to demonstrate that he had good cause for violating the work rule. Id.
In unemployment compensation cases, the Board is the ultimate finder of fact, empowered to determine the credibility of witnesses and evidentiary weight. Chapman v. Unemployment Compensation Board of Review, 20 A.3d 603 (Pa. Cmwlth. 2011). Thus, the Board may either accept or reject a witness' testimony, whether or not it is corroborated by other evidence of record. Id. In addition, this Court must examine evidence in the light most favorable to the party who prevailed before the Board and must give that party the benefit of all inferences that can logically and reasonably be drawn from the evidence. Id.
Relying on Peak v. Unemployment Compensation Board of Review, 509 Pa. 267, 501 A.2d 1383 (1985), Employer argues that, in this case, the Board exceeded its authority by substituting its factual findings and credibility determinations for those of the referee based upon uncontradicted testimony without stating its reasons for doing so.
In Peak, the Board rejected a referee's finding that the claimant did not violate the employer's lunch policy. Our Supreme Court noted that, when faced with contradicting testimony or evidence, the Board, as the ultimate fact finder, may substitute its judgment for that of its referees. Id. The court also recognized that its decision in Treon v. Unemployment Compensation Board of Review, 499 Pa. 455, 453 A.2d 960 (1982), requires the Board to set forth its reasons for doing so whenever it departs from a referee's findings of fact, explaining as follows:
To the extent Treon does impose such a requirement, its purpose is to ensure an adequate basis for judicial review. On this record, the Board's reason for reversing the referee is plain enough. Unlike the referee, it chose to believe the employer, not the employee. It disagreed with the referee's
factual resolution of conflicting evidence, a power it has under Section 504 of the [Law]....Peak, 509 Pa. at 273, 501 A.2d at 1387 (emphasis added). As this Court explained in First Federal Savings Bank v. Unemployment Compensation Board of Review, 957 A.2d 811 (Pa. Cmwlth. 2008), the decision in Treon only requires the Board to set forth reasons for disregarding a referee's findings if the findings are based upon uncontradicted evidence. Although Employer asserts that in this case the testimony presented was not in dispute, our review of the record reveals that Redel and Claimant gave conflicting testimony concerning: (1) whether or not Claimant told Steve Redel he would not be coming into work when he called him on January 4, 2011; and (2) whether or not Claimant had reason for not reporting to work on January 4, 2011. Given this conflicting testimony, Employer's reliance on Peak is misplaced.
Section 504 of the Law provides, in relevant part:
The board shall have power, on its own motion, or on appeal, to remove, transfer, or review any claim pending before, or decided by, a referee, and in any such case and in cases where a further appeal is allowed by the board from the decision of a referee, may affirm, modify, or reverse the determination or revised determination, as the case may be, of the department or referee on the basis of the evidence previously submitted in the case.43 P.S. §824.
Employer also argues that the Board erred in concluding that Claimant met his burden of establishing good cause for violating Employer's policy. Here, however, the referee and the Board both found that Claimant called off from work and therefore did not violate the Employer's no call, no show policy; thus, the burden did not shift to Claimant to demonstrate good cause.
A claimant has good cause to violate a work rule if his actions are reasonable and justifiable under the circumstances. Docherty v. Unemployment Compensation Board of Review, 898 A.2d 1205 (Pa. Cmwlth. 2006). The reasonableness of an employer's work rule and good cause of an employee's actions are evaluated in light of all attendant circumstances. Department of Corrections v. Unemployment Compensation Board of Review, 943 A.2d 1011 (Pa. Cmwlth. 2008). The question of whether or not a claimant had good cause is a question of law subject to our review. Id.
Employer now argues that Claimant violated the policy by waiting to contact Employer until after his work shift had already begun. Contrary to Employer's assertions, nothing in the record indicates that Employer's unwritten policy required Claimant to report his absence in advance of his scheduled time of work. In fact, both the referee and Board concluded that Claimant did not violate the no call, no show policy because Claimant called Employer to report his absence.
Although Employer discharged Claimant for violating the no call, no show policy, Employer also now complains that Claimant failed to provide sufficient evidence to establish good cause for his absence. However, because Employer did not assert that Claimant's absence, absent a violation of the no call, no show policy, constituted willful misconduct, Claimant had no burden to present evidence on this issue.
Moreover, after finding that Claimant did not violate Employer's no call, no show policy, the Board additionally concluded that Claimant's absence was for good cause. Because Claimant bore no burden to establish good cause, we need not review the Board's determination. However, we note that previous decisions have recognized family matters and health concerns as constituting good cause for an employee's absence. See, e.g., Mulqueen v. Unemployment Compensation Board of Review, 543 A.2d 1286 (Pa. Cmwlth. 1988) (holding that the claimant established good cause for his absence where he could not secure a baby sitter for his two young children); Chinn v. Unemployment Compensation Board of Review, 426 A.2d 1250 (Pa. Cmwlth. 1981) (holding that the claimant established good cause for violation of a work rule based on a family emergency); Thomas v. Unemployment Compensation Board of Review, 322 A.2d 423 (Pa. Cmwlth. 1974) (holding that a claimant who failed to report to work because he needed to care for his sick wife and his son established good cause for his absence). --------
Accordingly, the order of the Board is affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 7th day of August, 2012, the order of the Unemployment Compensation Board of Review, dated April 22, 2011, is affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge