Summary
holding that a claimant's conduct was work-related and, thus, disqualifying under Section 402(e) even though the conduct occurred off-duty at 3 a.m. at the claimant's boss's house
Summary of this case from Maskerines v. Unemployment Comp. Bd.Opinion
December 27, 1988.
Unemployment compensation — Scope of appellate review — Willful misconduct — Criminal act.
1. The Commonwealth Court of Pennsylvania must affirm a decision of the Unemployment Compensation Board of Review unless there was an error of law, or unless a party's constitutional rights were violated, or unless the necessary findings of fact are not supported by substantial evidence. [354]
2. In an unemployment compensation case, whether an employee's conduct constitutes willful misconduct is a question of law; a criminal act connected with one's work is in itself sufficient to constitute willful misconduct, even without a company rule forbidding it; furthermore, to render the claimant ineligible, the misconduct need not occur on the employer's premises or while the employee is on duty. [354-5]
Submitted on briefs June 1, 1988, to Judges DOYLE and McGINLEY, and Senior Judge KALISH, sitting as a panel of three.
Appeal No. 2649 C.D. 1987, from the Order of the Unemployment Compensation Board of Review in the case of In Re: Claim of Kurt Caruso, No. B-261844.
Application to the Office of Employment Security for unemployment compensation benefits. Application denied. Applicant appealed. Appeal sustained by referee. Employer appealed to the Unemployment Compensation Board of Review. Appeal sustained. Applicant appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
Michael F. Salisbury, O'Connor Salisbury, for petitioner.
No appearance for respondent.
Scott F. Zimmerman, with him, John B. Bechtol, Reed, Smith, Shaw McClay, for intervenor, Hammermill Paper Company.
Kurt Caruso (Claimant) appeals an order of the Unemployment Compensation Board of Review (Board) denying benefits due to willful misconduct under the provisions of 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).
Claimant was last employed by the Hammermill Paper Company (Employer) from April 16, 1976, at a final rate of $11.31 per hour and his last day of work was May 27, 1987. At or about 4:00 a.m. on May 27, 1987, Claimant, while intoxicated, appeared at the residence of a supervisor. The supervisor was working out of state at a plant that was embroiled in a labor dispute. The Board found that Claimant harassed and terrorized the supervisor's wife and small child. Also present at the home was the wife's brother-in-law, who was a fellow employee of Claimant. Claimant inquired in threatening tones of the brother-in-law whether he had become a "company man" instead of a "union man." Claimant was arrested near the home and charged with harassment, public drunkenness and disorderly conduct. Claimant was suspended on May 28, 1987, pending an investigation of the incident by Employer. The suspension was converted to a discharge effective June 4, 1987. Claimant ultimately pleaded guilty to charges of public drunkenness and disorderly conduct in connection with this incident. The charge of harassment was dismissed. (Notes of Testimony, July 9, 1987, (N.T.) at 20.)
The Office of Employment Security (OES) denied Claimant's application for benefits and he took a timely appeal. Following a hearing, the Referee reversed the decision and awarded benefits, determining that Claimant was not ineligible pursuant to Section 402(e) of the Law, because Claimant had not harassed the supervisor's family, and because the incident was not connected with Claimant's work. At the hearing the Referee obtained permission of the parties to determine Claimant's eligibility under Section 3 of the Law, 43 P. S. § 752, in anticipation that a Section 3 determination could become necessary, but he made no ruling under Section 3.
This Court has approved the denial of benefits pursuant to Section 3 in non-work- related situations in which the claimant's conduct was contrary to acceptable standards of behavior, and in which the conduct directly reflects upon the claimants ability to perform his assigned duties. See Unemployment Compensation Board of Review v. Derk, 24 Pa. Commw. 54, 353 A.2d 915 (1976).
The Employer appealed to the Board, arguing that Claimant was ineligible pursuant to Section 402(e) of the Law. The Employer failed to preserve the issue of Claimant's ineligibility under Section 3. The Board reversed the decision of the Referee, finding that Claimant's actions constituted willful misconduct because he had harassed the supervisor's family, and finding that Claimant's actions were work-related because they were related to a "brewing labor dispute."
See Merida v. Unemployment Compensation Board of Review, 117 Pa. Commw. 181, 543 A.2d 593 (1988).
Decision of the Board, Findings of Fact, Nos. 2-4.
Claimant argues that his actions did not constitute willful misconduct. We are limited to affirming the Board's decision unless there was an error of law, a party's constitutional rights were violated, or if the necessary findings of fact are not supported by substantial evidence. Estate of McGovern v. State Employees' Retirement Board, 512 Pa. 377, 517 A.2d 523 (1986). Whether or not an employee's conduct constitutes willful misconduct is a question of law subject to our review. Geslao v. Unemployment Compensation Board of Review, 103 Pa. Commw. 116, 519 A.2d 1096 (1987).
In his statement of the question, the conduct which Claimant ascribes to himself and which he suggests did not constitute willful misconduct is not the exact same conduct which the Board attributed to him. Nonetheless, because Claimant does not challenge the Board's findings as being unsupported by substantial evidence, we must only determine whether Claimant's actions, as found by the Board, constituted willful misconduct.
For behavior to constitute wilful misconduct, it must evidence (1) the wanton and wilful disregard of the employer's interest, (2) the deliberate violation of rules, (3) the disregard of standards of behavior which an employer can rightfully expect from his employe, or (4) negligence which manifests culpability, wrongful intent, evil design, or intentional and substantial disregard for the employer's interests or the employee's duties and obligations.
Kentucky Fried Chicken of Altoona, Inc. v. Unemployment Compensation Board of Review, 10 Pa. Commw. 90, 97, 309 A.2d 165, 168-169 (1973).
Claimant pleaded guilty to charges of public drunkenness and disorderly conduct in connection with this incident (N.T. at 20). It has long been the law that a criminal act connected with one's work is in itself sufficient to constitute willful misconduct, even without any company rule forbidding it. Berger v. Unemployment Compensation Board of Review, 80 Pa. Commw. 388, 471 A.2d 912 (1984). Claimant's actions unquestionably constitued a disregard of standards of behavior which an employer rightfully expected of its employees and as such constituted willful misconduct.
The only real question is whether Claimant's conduct was "work-connected." This Court stated in Gallagher v. Unemployment Compensation Board of Review, 36 Pa. Commw. 599, 602, n. 3, 388 A.2d 785, 787, n. 3 (1978), "there is no requirement that an employee's misconduct occur on the employer's premises and/or while on duty." There was ample evidence to support the Board's conclusion that Claimant's action arose as a result of a brewing labor dispute. At 3:00 a.m. the supervisor's wife and children had been awakened by the sound of an object thrown through the screen and glass front doors of their home. Claimant himself admitted that he went to the supervisor's house at 4:00 a.m., knowing that the supervisor was out of state; that he knew that there had been trouble at the supervisor's residence; and that he told the brother-in-law that if he was a "company man" a similar incident could occur at his house. Consequently, Claimant's conduct was sufficiently connected with his work so as to make him ineligible for benefits pursuant to Section 402(e) of the Law. The decision of the Board is affirmed.
We cited therein the cases of Nevel v. Unemployment Compensation Board of Review, 32 Pa. Commw. 6, 377 A.2d 1045 (1977), and Cadden Unemployment Compensation Case, 195 Pa. Super. 159, 169 A.2d 334 (1961). In Cadden the employee drove his employer's car home contrary to his employer's policy. In Nevel, the claimant, an employee of the Pennsylvania Liquor Control Board, violated a law which his employer had the duty to administer and enforce.
N.T. at 10.
N.T. at 18.
Having determined that Claimant's conduct was "work-connected," we thus distinguish this matter from Dunbar v. Unemployment Compensation Board of Review, 82 Pa. Commw. 575, 475 A.2d 1355 (1984), in which we held that "a worker is not ineligible for unemployment compensation unless his discharge is for willful misconduct connected with his work." Claimant's conduct in this case clearly is more closely related to his work than was the claimant's conduct in Dunbar.
Although the issue was waived ( See n. 3, supra), Claimant may also have been ineligible for benefits pursuant to Section 3 of the Law.
ORDER
AND NOW, this 27th day of December, 1988, the decision of the Unemployment Compensation Board of Review in the above-captioned matter is affirmed.
Judge MacPHAIL did not participate in the decision in this case.