Opinion
No. 1932 C.D. 2014
05-28-2015
Artur Grinberg, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE FRIEDMAN
Artur Grinberg (Claimant) petitions for review, pro se, of the September 24, 2014, order of the Unemployment Compensation Board of Review (UCBR) reversing the decision of a referee to award Claimant unemployment compensation (UC) benefits. The UCBR determined that Claimant was ineligible for UC benefits because he was discharged from work for willful misconduct under 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). Section 402(e) of the Law provides that an employee shall be ineligible for UC benefits for any week "[i]n which his unemployment is due to his discharge . . . from work for willful misconduct connected with his work." 43 P.S. §802(e).
Claimant was employed as a warehouse and inventory control worker for FM Supply (Employer) from July 2005 through February 19, 2014. (UCBR's Findings of Fact, No. 1.) On February 19, 2014, Claimant was scheduled to work from 8:00 a.m. to 5:00 p.m. (Id., No. 2.) On that date, Claimant arrived at work at 10:00 a.m. but did not call Employer beforehand to report that he would be late. (Id., No. 3.)
Employer had previously warned Claimant about his tardiness and had informed Claimant that he was required to call Employer's president if he were going to be late for work. (Id., No. 4.) Claimant was late for work on February 19, 2014, due to adverse weather and road conditions and heavy traffic. (Id., No. 5.) Employer discharged Claimant on February 19, 2014, because of his tardiness and his failure to inform Employer that he would be late for work. (Id., No. 6.)
Employer's witness testified that prior to his discharge, Claimant had received multiple verbal and written warnings about his tardiness. (N.T., 5/23/14, at 4.)
Claimant filed a claim for UC benefits, which the local service center denied. Claimant appealed to the referee. After a hearing on May 23, 2014, the referee determined that Claimant did not commit willful misconduct under section 402(e) of the Law and reversed the service center's decision.
Employer appealed to the UCBR, which reversed. The UCBR credited Claimant's testimony that he had good cause for arriving late at work on February 19, 2014, due to adverse weather and road conditions. The UCBR concluded, however, that Claimant did not have good cause for failing to call Employer to report that he would be late for work. Claimant now petitions for review of that decision.
Our review is limited to determining whether constitutional rights were violated, whether an error of law was committed, or whether the findings of fact were unsupported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704.
On appeal, Claimant asserts that the UCBR erred in concluding that he failed to establish good cause for not calling Employer to report that he would be late for work on February 19, 2014. We disagree.
"Willful misconduct" is defined as: (1) a wanton and willful disregard of the employer's interests; (2) a deliberate violation of the employer's rules; (3) a disregard of the standards of behavior that an employer rightfully can expect from its employees; or (4) negligence that manifests culpability, wrongful intent, evil design, or an intentional and substantial disregard of the employer's interests or the employee's duties and obligations. Fritz v. Unemployment Compensation Board of Review, 446 A.2d 330, 332 (Pa. Cmwlth. 1982). An employee's refusal to comply with an employer's directive can amount to willful misconduct. Klapec Trucking Company v. Unemployment Compensation Board of Review, 503 A.2d 1122, 1124 (Pa. Cmwlth. 1986). The employer has the burden of proving that the employee committed willful misconduct. Id. Once the employer meets its burden, the burden shifts to the employee to show good cause for not complying with the employer's directive. Id.
In his brief, Claimant offers numerous reasons for his failure to report his tardiness on February 19, 2014. First, he asserts that calling Employer while driving would have risked injury to himself and others because he did not have a hands-free cellular device. (Claimant's Br. at 12.) In order to call Employer, Claimant would have had to pull off the roadway in icy conditions, which would have further delayed his arrival at work. (Id.) Claimant also asserts that his cellular phone was "uncharged and subsequently dead for the majority of his drive to work." (Id.) Finally, Claimant asserts that had he called Employer while driving, the conversation likely would have been emotionally heated, further endangering himself and others on the roadway. (Id. at 12-13.) Thus, Claimant posits that "[b]y not calling [Employer], [he] was acting in the best interest of the company, as not calling while driving minimized the time it took him to get to work and ensured he was following safe driving guidelines designed by the State." (Id. at 13.)
Unfortunately, Claimant offered none of these reasons at the referee's hearing. When asked if he had called Employer to report his tardiness on February 19, 2014, Claimant responded: "[N]o, because I figured I'd get there late. Even if I get there an hour later or an hour and a half [later,] I'm still there." (N.T., 5/23/14, at 6.) That is the extent of Claimant's testimony on the issue of good cause. Claimant failed to offer any reason for not contacting Employer, as he was required to do, to report that he would be late for work that day. Therefore, the UCBR correctly concluded that Claimant failed to establish good cause for his conduct.
See Tener v. Unemployment Compensation Board of Review, 568 A.2d 733, 738 (Pa. Cmwlth. 1990) (stating that this court is bound by the facts in the certified record on appeal); Dehus v. Unemployment Compensation Board of Review, 545 A.2d 434, 436 (Pa. Cmwlth. 1988) (noting that issues not raised before the referee are waived). --------
Accordingly, we affirm.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge
ORDER
AND NOW, this 28th day of May, 2015, we hereby affirm the September 24, 2014, order of the Unemployment Compensation Board of Review.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge