Opinion
No. 755 C.D. 2012
11-09-2012
Linn E. Frank, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COHN JUBELIRER
Linn E. Frank (Claimant), pro se, petitions for review of the Order of the Unemployment Compensation Board of Review (Board) that affirmed an Unemployment Compensation Referee's (Referee) determination that Claimant committed willful misconduct by using his personal cell phone during work hours after being directed not to do so, making him ineligible for unemployment compensation (UC) benefits under Section 402(e) of the Unemployment Compensation Law (Law), 43 P.S. § 802(e). On appeal, Claimant asserts that the Board erred because Allegheny Recycled Products (Employer) does not have a written rule or policy prohibiting the use of personal cell phones, his brief phone call was not sufficiently serious to disqualify him from receiving UC benefits, and his phone call was justified because he frequently worked through his breaks. Because we conclude that Claimant violated a reasonable work directive and did not establish good cause for that violation, we must affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended.
Claimant worked as a fork truck operator for Employer for thirteen months until he was fired on November 14, 2011, when, according to Claimant's Manager (Manager), Employer's Owner (Owner) saw Claimant using his cell phone for personal matters on the clock and not completing a certain work assignment that Claimant stated he would perform. Manager had previously warned Claimant regarding using his cell phone and advised Claimant not to do so again. Prior to the November 14, 2011, incident, Manager found Claimant using his cell phone and Claimant told Manager that he would turn off his cell phone and not use it at work. Manager responded that turning off the cell phone and not using it again would be advisable and that it would be "stupid to lose your job over something like" talking on your cell phone. (Referee Hr'g Tr. at 4.) Claimant acknowledged that he was making a personal phone call on his cell phone while on the clock. (Referee's Findings of Fact (FOF) ¶¶ 1-7.)
Claimant filed a claim for UC benefits, which the Duquesne UC Service Center approved. Employer appealed, and the matter was assigned to the Referee for a hearing. Claimant and Manager testified before the Referee. The Referee concluded that Claimant was ineligible for benefits because Manager had reasonably directed Claimant not to use his cell phone for personal business on work time, Claimant violated this reasonable directive, and Claimant did not provide good cause for that violation. In so concluding, the Referee recognized that some of the testimony regarding the events of November 14, 2011 was hearsay because Manager was testifying about what Owner told him occurred on that date, but the Referee held that there was "sufficient competent evidence in the record to conclude that . . . Claimant's actions were sufficiently serious as to be disqualifying, given . . . Claimant's use of a cell phone for personal matters." (Referee Op. at 2.)
Claimant appealed to the Board. The Board held that Claimant's testimony corroborated the hearsay testimony that Owner found Claimant on the back loading dock using his cell phone for a personal call and not completing the work Claimant said he was going to complete. The Board further concluded that, even if Employer's handbook did not have a rule prohibiting the use of a personal cell phone while working, Manager had issued a reasonable directive with which Claimant failed to comply. The Board adopted and incorporated the remainder of the Referee's findings of fact and conclusions and affirmed the Referee's determination of ineligibility. Claimant now petitions this Court for review.
Manager also alleged that Owner observed Claimant smoking on the back dock, which Claimant also had been warned against doing. However, the Board removed reference to the allegations of Claimant smoking on November 14, 2011, which Claimant had denied during the hearing, (Referee Hr'g Tr. at 5), and, therefore, there was no corroborating evidence for Manager's hearsay testimony.
"The Court's review is limited to determining whether constitutional rights were violated, whether an error of law was committed, whether a practice or procedure of the Board was not followed or whether the findings of fact are supported by substantial evidence in the record." Western & Southern Life Insurance Co. v. Unemployment Compensation Board of Review, 913 A.2d 331, 334 n.2 (Pa. Cmwlth. 2006).
On appeal, Claimant argues that Employer does not have a written rule or policy prohibiting the use of a personal cell phone at work and that his making a brief personal phone call is not sufficiently serious to justify finding him ineligible for UC benefits. Claimant also asserts that his making a short personal phone call was justified because he frequently worked through lunches, on weekends, and during other break periods to ensure that all the work that needed to get done was completed.
Claimant also argues that other employees have engaged in worse behavior, such as failing drug tests and not completing their work duties, and were subject to less harsh disciplinary actions. However, Claimant presented no evidence, just vague allegations, that this occurred. --------
Section 402(e) of the Law provides, in pertinent 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). "An employee's refusal to comply with a directive or request of the employer can constitute willful misconduct." Pryor v. Unemployment Compensation Board of Review, 475 A.2d 1350, 1352 (Pa. Cmwlth. 1984). "It is not necessary that an employer's reasonable order or directive be written in order for the Court to determine that an employee's violation thereof constitutes willful misconduct: an employer may deal with its employees on a non-written basis and expect its directives to be followed." Graham v. Unemployment Compensation Board of Review, 840 A.2d 1054, 1057 (Pa. Cmwlth. 2004). The employer bears the burden of proving that the claimant's actions rose to the level of willful misconduct. Docherty v. Unemployment Compensation Board of Review, 898 A.2d 1205, 1208 (Pa. Cmwlth. 2006). If the employer satisfies its burden, the burden shifts to the employee to show that the employee had good cause for the conduct. McKeesport Hospital v. Unemployment Compensation Board of Review, 625 A.2d 112, 114 (Pa. Cmwlth. 1993). "A claimant has good cause if his or her actions are justifiable and reasonable under the circumstances." Docherty, 898 A.2d at 1208-09. Whether an employee's actions constitute willful misconduct is a question of law subject to de novo review and must be determined based on a consideration of all of the circumstances. Id. at 1208.
Here, the Board found that Manager issued a directive to Claimant not to use his cell phone to conduct personal business while on the clock. Claimant does not challenge the reasonableness of this directive. Because Manager gave a reasonable directive for Claimant to follow, it is of no consequence that Employer does not have a written rule or policy prohibiting personal cell phone use. Graham, 840 A.2d at 1057. Notwithstanding this directive and Manager's warning that it would be "stupid to lose your job over something like" talking on your cell phone, (Referee Hr'g Tr. at 4), Claimant used his cell phone to conduct personal business while on the clock. In doing so, Claimant violated Manager's directive.
Claimant argues that making a brief cell phone call is not sufficiently serious to constitute willful misconduct. However, as the Board notes, Claimant made a personal phone call after being told not to make any more personal calls while clocked in and after being warned that doing so could result in his discharge. We have held that "[a] conclusion that the employee has engaged in disqualifying willful misconduct is especially warranted in such cases where, as here, the employee has been warned . . . for prior similar conduct." Department of Transportation v. Unemployment Compensation Board of Review, 479 A.2d 57, 58 (Pa. Cmwlth. 1984). Thus, Employer sustained its burden of showing that Claimant violated a reasonable directive, and the burden shifted to Claimant to demonstrate that he had good cause for violating that directive in order to receive benefits.
Claimant argues that his working through breaks, lunches, and on weekends justifies his actions. However, Claimant testified that he received overtime for working through his lunch and on weekends, (Referee Hr'g Tr. at 5); thus, Claimant was compensated for that time. Moreover, there is no indication that, on November 14, 2011, Claimant was required to work through one of his breaks such that he could not make this particular phone call during a break, rather than while on the clock. Therefore, Claimant did not establish that he had good cause for not following Manager's reasonable directive and he is ineligible for UC benefits pursuant to Section 402(e) of the Law.
Accordingly, we are constrained to affirm the Board's Order.
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RENÉE COHN JUBELIRER, Judge ORDER
NOW, November 9, 2012, the Order of the Unemployment Compensation Board of Review in the above-captioned matter is hereby AFFIRMED.
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RENÉE COHN JUBELIRER, Judge