Opinion
Argued December 9, 1977
April 27, 1978.
Unemployment compensation — Words and phrases — Wilful misconduct — Burden of proof — Unemployment Compensation Law, Act 1936, December 5, P.L. (1937) 2897 — Serious disregard of responsibilities — Satire.
1. An employe is ineligible for benefits under the Unemployment Compensation Law, Act 1936, December 5, P.L. (1937) 2897, if the employer proves that such dismissal was for wilful misconduct which is the wanton or wilful disregard of the employer's interest, a deliberate violation of rules, a disregard of expected behavior standards or negligence manifesting culpability, wrongful intent, evil design or an intentional and substantial disregard of the employer's interests or the employe's obligations. [110-111]
2. The posting of a satirical notice on the employer's premises during lunch hour does not constitute wilful misconduct precluding the receipt of unemployment compensation benefits by an employe discharged as a result thereof when there is no evidence that such conduct was disruptive, was in violation of any rule or represented a serious disregard of his responsibilities to his employer. [111-112]
Argued December 9, 1977, before Judges CRUMLISH, JR., MENCER and BLATT, sitting as a panel of three.
Appeal, No. 1756 C.D. 1976, from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of David Gladkowski, No. B-135253.
Application with the Bureau of Employment Security for unemployment compensation benefits. Application denied. Applicant appealed to the Unemployment Compensation Board of Review. Denial affirmed. Applicant appealed to the Commonwealth Court of Pennsylvania. Held: Reversed and remanded.
Andrew F. Erba, for appellant.
Susan Shinkman, Assistant Attorney General, with her Sydney Reuben, Assistant Attorney General, and Robert P. Kane, Attorney General, for appellee.
David Gladkowski (Claimant) appeals a decision of the Unemployment Compensation Board of Review (Board) affirming the referee's denial of benefits.
Claimant had been employed for five years by Sears, Roebuck and Company (Employer) as a "retail order filler" at the time of his discharge. The Board found Claimant was discharged for posting
award posters on the Company premises stating anyone with information concerning missing 'suggestion award certificates' will receive $50.00 cash and a $1.00 raise in pay. The Board also found that
[c]laimant had no authority to offer such an award or to post the posters on the Company premises.
The missing certificate in question was awarded to Claimant's employee group evidencing 100% participation in a suggestion campaign. The Board concluded that this
was an act against the employer's interest and a disregard of the standards of behavior which an employer has a right to expect of an employe and constitutes willful misconduct in connection with his work.
Accordingly, the Board affirmed the referee's denial of benefits pursuant to Section 402(e) of the Unemployment Compensation Law, Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P. S. § 802(e).
Section 402(e) of the Act states in part as follows:
An employe 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. . . .
Though not statutorily defined, the term "willful misconduct" has been judicially developed to encompass an act of wanton or willful disregard of the employer's interest, a deliberate violation of the employer's rules, a disregard of the standards of behavior which the employer has the right to expect of his employee, or negligence manifesting culpability, wrongful intent, evil design, or an intentional and substantial disregard of the employer's interests or the employee's duties and obligations to the employer. Serban v. Unemployment Compensation Board of Review, 29 Pa. Commw. 147, 370 A.2d 755 (1977).
Claimant, while admitting he posted the statement in question, contends on appeal that he had meant merely to satirize the situation, and that the Board erred as a matter of law in concluding that his action rose to the level of willful misconduct.
As we said in Bickling v. Unemployment Compensation Board of Review, 17 Pa. Commw. 619, 622, 333 A.2d 519, 521 (1975):
This definition indicates that before the actions of an employe can constitute willful misconduct, the employe must display a serious disregard of his responsibilities to his employer, in a manner that is in some real sense deterimental [sic] to his employer's interests. The question is primarily a matter of degree, and the inquiry must be framed in terms of whether the employe's acts rise to the level of willful misconduct.
It is beyond discussion that, where an attempt is made to disqualify an employee on the basis of willful misconduct, the burden of proof is upon the employer. Ravenell v. Unemployment Compensation Board of Review, 32 Pa. Commw. 138, 377 A.2d 1297 (1977). In accordance with the standard set forth in Bickling, supra, we conclude that Employer did not meet the requisite burden of proof. Though we do not countenance Claimant's conduct herein recited, we cannot, on the other hand, agree that Claimant has evidenced a serious disregard of his responsibilities to Employer. The record fails to disclose Claimant's violation of any specific rule. Nor is there any evidence that the work schedules of Claimant or any of his fellow employees were disrupted by the posted notice. Moreover, Claimant testified that the sign was made during his lunch hour. We conclude, therefore, that Claimant's actions, in this context, were de minimis in nature and hold that Employer has failed to meet the requisite burden of proving willful misconduct.
Accordingly, we
ORDER
AND NOW, this 27th day of April, 1978, the decision of the Unemployment Compensation Board of Review denying benefits to David Gladkowski is hereby reversed and benefits are awarded. The record is remanded to the Board for the computation of benefits consistent with this opinion.