Opinion
No. 539 C.D. 2012
11-15-2012
Warren Eric Jackson, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE LEAVITT
Warren Eric Jackson (Claimant) petitions for review of an adjudication of the Unemployment Compensation Board of Review (Board) denying his application for benefits. In doing so, the Board affirmed the Referee's determination that Claimant had violated a work rule by receiving gifts from a vendor, which constituted willful misconduct and rendered him ineligible for benefits under Section 402(e) of the Unemployment Compensation Law (Law). Claimant argues that substantial evidence does not support the Board's finding that he violated the work rule against receiving gifts from a vendor; alternatively, he argues that he established good cause for the violation. Discerning no merit to these arguments, we affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(e). It provides, in relevant 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).
Claimant was employed by the Pennsylvania Liquor Control Board (Employer) as the general manager of Wine & Spirits Shoppe 6102, where he worked from April 6, 1998, through April 28, 2011, when he was suspended. On June 1, 2011, following an investigation, Claimant was terminated. Claimant applied for unemployment benefits, but the UC Service Center denied them. It found that Claimant had solicited a vendor for a donation and had accepted promotional t-shirts and alcoholic beverages without paying for them. Claimant appealed.
At the hearing before the Referee, Employer provided a copy of its work rule that prohibited employees from "[r]equesting or receiving gratuities, tips or gifts." Certified Record, Item No. 2, UC Exhibit 14c (C.R. ___). It also provided a copy of its official code of conduct, which states, in relevant part, as follows:
B. No member or employee of the Board shall:
1. Solicit or receive, even if for another, and whether directly or indirectly, any gift, gratuity, favor, entertainment, loan, or any other thing of economic or monetary value from any person who:
C.R., Item No. 2, UC Exhibit 17a. Claimant signed acknowledgements that he received, read and understood both rules.I. Is seeking to obtain business from or has financial relations with the Board;
II. Conducts operations or activities that are regulated by the Board[.]
In addition, Employer sent a memorandum to all employees reminding them of the above-quoted rules and noting that a violation of the rules constituted just cause for immediate discharge. Employer offered into evidence Claimant's signed acknowledgment of February 11, 2011, that he had received the memo and agreed that he would "not accept anything of value, including meals or tips, from an individual who does business with the Board, who is licensed by the Board or who represents someone who does business with or is licensed by the Board." C.R., Item No. 2, UC Exhibit 11b.
Shirley Steinman, a sales clerk, testified on behalf of Employer. She stated that on April 11, 2011, she overheard Claimant talking by telephone to a representative of a vendor, Southern Wine & Spirits. She heard Claimant ask the representative to "put together some items for him for a golf outing" as a donation. Notes of Testimony, November 16, 2011, at 5 (N.T. ___). On April 15th, the vendor's representative brought two packages to the store. One package was for Claimant, and the other was a special liquor order. Because Claimant was not at the store when the vendor arrived, Claimant spoke to him by phone. Claimant then spoke by phone with Karol King, the assistant manager.
Steinman explained that the vendor fills special liquor orders, i.e., the vendor supplies customers with brands of alcohol that are not available in Employer's store. Customers order the alcohol through the store or directly from the vendor and the vendor is responsible for delivering the alcohol to the store. The customers then come to the store to pick up the order.
Karol King testified for Employer. She explained that Claimant had asked a vendor's representative to put together a package for a golf tournament. When the representative arrived with the package, she heard him explain to Claimant on the telephone that the package was just donations and Claimant should "just take it and do with it whatever you want." N.T. 16. Claimant then told King to put the package in the closet, and she did so.
King then explained that on April 18th, Amy Sellner, the district manager, came to the store and informed Claimant that he was being suspended because he had accepted a gift from a vendor. Claimant retrieved the package from his car for Sellner, who opened it. It contained six jerseys, one bottle of wine, one bottle of vodka, 20 pepper shakers, instructions for a game involving the pepper shakers, and the vendor's business card.
Claimant then testified. He stated that he ran into a friend from college, who asked Claimant if he knew of any vendors that might be interested in helping with his planned golf outing. Claimant then contacted the vendor's representative in question, who responded that his company did not make donations for golf outings but that he would look into it. The representative noted that he had a prior business relationship with the bar involved in the golf outing, to which Claimant responded that a donation might advance that relationship. Claimant opined that he was trying to help a customer, not solicit business for the golf outing, and his job included customer service.
Claimant testified that he told King that if the representative appeared with merchandise for the golf outing, he did not want it because Claimant did not plan to deliver it or attend the golf outing. When the representative came to the store with the package, Claimant talked with him on the telephone, but the representative would not deliver it to the customer. Claimant told him to leave it at the store and that he would deal with it later. When Claimant returned to the store, he put the package in the trunk of his car. He explained that the store was about to undergo an inventory and that he could not have alcohol in the store that was not part of the inventory. After putting it in his trunk, he forgot about it. Claimant stated that it was against Employer's policy for a vendor to leave merchandise in the store that was not accounted for by paperwork.
Claimant testified that he signed the acknowledgement of the February 2011 memorandum on the work rules and the code of conduct. Claimant asserted that he did not violate these rules because he did not solicit or obtain the merchandise for any particular person.
The Referee determined that Claimant knowingly violated Employer's work rule and code of conduct and that Claimant did not establish good cause for the violation. Rather, he hid the package in his automobile until confronted by a supervisor. The Referee denied benefits, and Claimant appealed. The Board affirmed without further opinion.
Claimant now petitions for this Court's review. First, Claimant argues that the Board erred in determining that he deliberately violated Employer's rules. Second, he argues that even if a work rule was violated, good cause was established for the violation. Third, he complains that Employer's brief to the Board referred to other allegations of misconduct that were not presented before the Referee, thereby tainting the Board's decision.
Our review is limited to determining whether constitutional rights were violated, errors of law committed or whether the findings of fact are supported by the evidence. Renda v. Unemployment Compensation Board of Review, 837 A.2d 685, 691 n.4 (Pa. Cmwlth. 2003).
We begin with a review of the law on willful misconduct. Although not defined in the Law, the courts have established that it means the following:
(1) an act of wanton or willful disregard of the employer's interest;Altemus v. Unemployment Compensation Board of Review, 681 A.2d 866, 869 (Pa. Cmwlth. 1996). It is the employer's burden to establish that a claimant's conduct constituted willful misconduct. Conemaugh Memorial Medical Center v. Unemployment Compensation Board of Review, 814 A.2d 1286, 1288 (Pa. Cmwlth. 2003). Where willful misconduct is based upon the violation of a work rule, the employer must establish the existence of the rule, its reasonableness, and that the employee was aware of the rule. Bishop Carroll High School v. Unemployment Compensation Board of Review, 557 A.2d 1141, 1143 (Pa. Cmwlth. 1989). Once employer meets this burden, the burden shifts to the claimant to prove that the rule was unreasonable or that he had good cause for violating the rule. Gillins v. Unemployment Compensation Board of Review, 534 Pa. 590, 601 n.3, 633 A.2d 1150, 1156 n.3 (1993). With these principles in mind, we turn to Claimant's appeal.
(2) a deliberate violation of the employer's rules;
(3) a disregard of standards of behavior which the employer has a right to expect of an employee; or
(4) negligence indicating an intentional disregard of the employer's interest or of the employee's duties and obligations to the employer.
In his first issue, Claimant argues that willful misconduct was not established. He argues that no evidence was presented on how Claimant was to deal with this specific situation. Accordingly, he exercised managerial discretion and did not intentionally conceal or accept the package. Further, the work rule does not specify a time frame by which he was to contact his supervisor about a donation. Stated otherwise, Claimant argues that the situation was caused by the representative's delivery of the package to the store instead of to the intended beneficiary. He did not solicit the vendor for personal gain and cannot be faulted for failing to discuss the situation with his supervisor by some unspecified deadline.
Employer, which has filed an amicus curiae brief, responds that the problem was not caused by the representative's delivery of the package. Rather, Claimant caused the problem by soliciting the vendor to donate items, which solicitation violated the work rule. Employer argues that it had no obligation to train employees on issues created by an employee's violation of the rules. We agree.
Claimant argues that he did not "receive" the package because the items were not for his benefit or that of any particular individual. This is irrelevant to Employer's solicitation prohibition. Employer argues, persuasively, that Claimant knew his conduct was impermissible and, thus, removed the vendor's package from the store so that it would not be discovered during inventory. Although Claimant characterizes his conduct as customer service, a valid "service" cannot be one that violates Employer's work rules. In short, Employer's evidence established a violation of its work rules, and we reject Claimant's first allegation of error.
In his second issue, Claimant argues that he established good cause for his work rule violation. Claimant contends that he did not know that Employer's policy prohibited him from handling a package that contained alcohol with unlisted codes. In support, Claimant offers a dissertation on the coding of alcohol brands, but this information is not relevant. Claimant was not terminated because the donated alcohol did not carry a certain code. In Claimant's notice of termination there is no mention of alcohol codes. C.R., Item No. 15, Claimant Exhibit 2.
Claimant's managerial discretion argument is also unavailing. Claimant cites Bickling v. Unemployment Compensation Board of Review, 333 A.2d 519 (Pa. Cmwlth. 1975), for the proposition that exercising discretion can establish good cause. In Bickling, the employer's work rule required that the thermostat in its nursing home remain at 75 degrees. However, the claimant lowered the thermostat because the room was uncomfortably warm and the patients were clad in flannel pajamas. We held that the claimant's exercise of discretion was reasonable, thereby establishing good cause.
Unlike the claimant in Bickling, Claimant did not offer a reasonable basis for his work rule violation. Only months before the incident occurred, Employer notified Claimant, and other employees, that solicitation of vendors was prohibited. Claimant claims that he exercised managerial discretion after the package was left, but by that time he had already violated Employer's work rule against making solicitations.
Claimant argues that he had discretion to place the package in the trunk of his automobile. Unfortunately he was suspended before he had the chance to report the incident to his supervisor. Again, Claimant's argument is irrelevant because Claimant was terminated for soliciting items from a vendor, not for failing to report the incident to his supervisor.
In his third assertion of error, Claimant argues that the Board considered matters that were not addressed by the Referee. Specifically, at the Referee hearing, Employer submitted several exhibits detailing other instances where Claimant had acted contrary to work rules. Claimant did not object to the introduction of this evidence. The Referee did not address this evidence in her findings, but focused only on the evidence relating to Claimant's solicitation of a vendor. Before the Board, Employer relied on this evidence in its brief. Claimant contends that this hearsay evidence may have tainted the Board's decision.
Employer counters that the evidence was properly admitted without objection by Claimant; the Referee did not base her determination on this evidence; and the Board merely adopted and incorporated the Referee's findings and conclusions. The Board counters in its brief that it did not make any findings on the hearsay evidence; rather, its holding was based solely on Claimant's solicitation of a vendor.
Administrative hearings are not bound by "technical rules of evidence." 2 Pa. C.S. §505. Hearsay evidence may be received and considered during administrative proceedings. D'Alessandro v. Pennsylvania State Police, 594 Pa. 500, 512, 937 A.2d 404, 411 (2007). However, hearsay evidence will constitute substantial evidence only where it is corroborated by other competent evidence of record. Sule v. Philadelphia Parking Authority, 26 A.3d 1240, 1243 (Pa. Cmwlth. 2011). Claimant did not object to the hearsay evidence. Claimant may have been able to establish that it was not corroborated by other competent evidence, but it would not matter because the Board did not consider this hearsay evidence. Therefore, we reject Claimant's third allegation of error.
It states, in relevant part, as follows:
Commonwealth agencies shall not be bound by technical rules of evidence at agency hearings, and all relevant evidence of reasonably probative value may be received.
For these reasons, we affirm the Board's order.
/s/_________
MARY HANNAH LEAVITT, Judge ORDER
AND NOW, this 15th day of November, 2012, the order of the Unemployment Compensation Board of Review dated March 16, 2012, in the above captioned matter is hereby AFFIRMED.
/s/_________
MARY HANNAH LEAVITT, Judge