Opinion
No. 435 C.D. 2011
09-28-2011
Jack Lehr, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE PELLEGRINI
Jack Lehr Electric, Inc. (Employer) petitions for review from an order of the Unemployment Compensation Board of Review (Board) finding Christopher Weibel (Claimant) eligible for benefits under Section 402(e) of the Unemployment Compensation Law (Law) because his conduct was inadvertent, not conscious wrongdoing necessary to make out willful misconduct. Finding no error in the Board's decision, we affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(e). That section provides in pertinent part:
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, irrespective of whether or not such work is "employment" as defined in this act.
Willful misconduct has been defined as:
(a) wanton or willful disregard for an employer's interests; (b) deliberate violation of an employer's rules; (c) disregard for standards of behavior which an employer can rightfully expect of an employee; or (d) negligence indicating an intentional disregard of the employer's interest or an employee's duties or obligations.
Claimant was employed by Employer as a heating, ventilation, and air conditioning technician. On September 8, 2010, Claimant was terminated when, contrary to Employer's policy, he failed to use a micron gauge to insure that a refrigerant system he installed was properly evacuated or purged. Claimant filed a claim for unemployment compensation benefits which the Unemployment Compensation Service Center granted because it determined that Claimant's failure to use the gauge was not willful. Employer appealed.
Before the Referee, Edward Lehr (Lehr), Employer's president, testified that part of the refrigerant system installation process was to evacuate the system to ensure that the system was free of air and excess moisture, which if not done, leads to a system malfunction or decreased efficiency. To ensure that the system was properly evacuated, Employer mandated a micron gauge be used because it was the most accurate method to ensure that system had been properly evacuated. Lehr offered installation manuals that accompanied new heating and cooling systems. Those manuals provided that, during installation, the system was to be evacuated until the micron gauge read a certain level. Lehr went on to testify that on September 2 or 3, 2010, Claimant was assigned to install a refrigerant system. Employer's technical specialist who was on the job with Claimant that day informed Lehr that Claimant failed to use the gauge to determine whether the system was properly evacuated. Lehr stated that he then met with Claimant on September 8, 2010, and during the meeting, Claimant acknowledged his failure to use the gauge and, as a result, was terminated.
In his testimony, Claimant stated that he was aware of Employer's policy to use the micron gauge and was trained in its proper use. As to his failure to use the gauge on the installation of the refrigerant system in question, he testified that it was inadvertent, and that he "simply forgot because [he] was being rushed and it was an accident." (Reproduced Record at 42.) He went on to testify that he felt rushed because there were other service calls to make once the installation of that system was completed, and he was performing other job duties during the installation.
Finding Claimant's testimony not credible that he inadvertently did not use the micron gauge, the Referee found that Claimant's conduct constituted willful misconduct because his failure to use the micron gauge when evacuating the refrigerant system was violation of Employer's policy and in disregard of Employer's interests. Claimant appealed to the Board, which reversed and granted benefits because, unlike the Referee, it found Claimant's testimony credible that he "forgot" to use the micron gauge because he was rushed to complete the installation as he had other service calls to make. Employer then filed this appeal.
Our scope of review is limited to determining whether constitutional rights were violated, an error of law was committed or findings of fact were unsupported by substantial evidence. Myers v. Unemployment Compensation Board of Review, 533 Pa. 373, 625 A.2d 622 (1993). 2 Pa.C.S. §704. When the Board makes its own findings of fact, it is the Board's findings, not the referee's, that are subject to our review. Section 504 of the Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §824. When it makes its own findings, matters of credibility and evidentiary weight are within its sole province. BK Foods v. Unemployment Compensation Board of Review, 547 A.2d 873 (Pa. Cmwlth. 1988). Whether the actions of an employee constitute willful misconduct is a question of law. Temple University v. Unemployment Compensation Board of Review, 565 Pa. 178, 772 A.2d 416, 418 n. 1 (2001). --------
Employer contends that Claimant's conduct constituted willful misconduct because Claimant intentionally failed to use the micron gauge when evacuating the system which constitutes willful misconduct. If the Board had agreed with the Referee and found that Claimant had failed to use the micron gauge intentionally, we would agree that Claimant had engaged in willful misconduct by not following Employer's policy. However, that is not what the Board found. Rather than finding that Claimant had intentionally not used the micron gauge, the Board instead found that Claimant inadvertently "forgot" to do so.
Because credibility determinations are entrusted to the Board, not the Referee, and mere negligence by an employee in carrying out his or her duties is not willful misconduct, the decision of the Board is affirmed.
/s/_________
DAN PELLEGRINI, Judge
ORDER
AND NOW, this 28th day of September, 2011, the order of the Unemployment Compensation Board of Review, dated February 14, 2011, is hereby affirmed.
/s/_________
DAN PELLEGRINI, Judge
Grieb v. Unemployment Compensation Board of Review, 573 Pa. 594, 827 A.2d 422, 425 (2003). However, "an employer cannot demonstrate willful misconduct by merely showing that an employee committed a negligent act, but instead must present evidence indicating that the conduct was of an intentional and deliberate nature." Myers v. Unemployment Compensation Board of Review, 533 Pa. 373, 378, 625 A.2d 622, 625 (1993) (internal citation omitted).