Opinion
No. 1589 C.D. 2014
03-27-2015
Leonard G. McArdle, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE FRIEDMAN
Leonard G. McArdle (Claimant) petitions for review, pro se, of the July 8, 2014, order of the Unemployment Compensation Board of Review (UCBR) affirming the decision of a referee to deny Claimant unemployment compensation (UC) benefits 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 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 crew leader by Giant Eagle, Inc. (Employer) at its South Park Get-Go for approximately 15 years. Claimant's last day of work was February 11, 2014. (UCBR's Findings of Fact, No. 1.) Claimant applied for UC benefits, which the local service center granted. Employer appealed, and a referee held a hearing at which Claimant, Claimant's counsel, and three witnesses for Employer appeared. The referee reversed the service center, finding Claimant ineligible for UC benefits pursuant to section 402(e) of the Law. Claimant appealed to the UCBR.
The UCBR found that Employer has a policy, of which Claimant was or should have been aware, requiring employees to clock in and out when taking breaks or lunch. In January 2014, Employer received complaints that Claimant was sleeping while on duty. Employer reviewed video surveillance that showed Claimant sleeping for 30 to 51 minutes at a time, on 18 occasions, while on duty from January 6, 2014, through February 7, 2014. (Id., Nos. 2-4.)
Claimant admitted that he did not clock out on any of the 18 occasions he was viewed sleeping while on duty. On February 11, 2014, Employer discharged Claimant for failure to clock in and out when taking breaks and for sleeping while on duty. (Id., Nos. 5-6.)
The UCBR affirmed the referee's decision, finding Claimant ineligible for UC benefits under section 402(e) of the Law. Claimant now petitions this court for review.
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.
Claimant argues that the UCBR erred in finding that he committed willful misconduct. Initially, Claimant contends that the UCBR overlooked or ignored Employer's evidence that contradicted the UCBR's determination that Claimant was aware of or should have been aware of Employer's policy. 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. Oliver v. Unemployment Compensation Board of Review, 5 A.3d 432, 438 (Pa. Cmwlth. 2010) (en banc). When an employee is discharged for violating an employer's work rule, the employer bears the burden of proving the existence of the rule and the employee's violation of the rule. Walsh v. Unemployment Compensation Board of Review, 943 A.2d 363, 369 (Pa. Cmwlth. 2008). The burden then shifts to the employee to show good cause for his actions, i.e., that his conduct was justified or reasonable under the circumstances. Id.
Initially, Claimant asserts that he never received an Employer handbook, so he was unaware of the policy prohibiting sleeping on the job. However, Claimant testified that he knew sleeping on the job was not permitted. (N.T., 4/15/14, at 37.)
Next, Claimant asserts that the testimony of Employer's witness, Will Upshaw, was conflicting and, therefore, not credible. However, the UCBR relied upon Don Wilson's testimony, not Upshaw's testimony, in determining that: (1) Employer had a policy requiring employees to clock in and out when taking a break or lunch; and (2) Claimant was sleeping while on duty. (See UCBR's Findings of Fact, Nos. 2, 4.) Therefore, Upshaw's testimony was not necessary in determining whether Claimant committed willful misconduct.
For example, Upshaw testified that Employer did not post break guidelines on the premises but later admitted that he saw guidelines posted. (N.T., 4/15/14, at 27-28.) Upshaw further testified that Claimant was entitled to only two 15-minute breaks but later admitted that Claimant was entitled to two 15-minute breaks plus a 30-minute lunch break. (N.T., 4/15/14, at 26, 29.) --------
Employer presented credible testimony and evidence that Claimant failed to clock out prior to taking breaks and, therefore, was sleeping while on duty. Further, Claimant admitted to not clocking out before he went on break to sleep. Therefore, Employer met its burden of proving willful misconduct.
The burden then shifted to Claimant to prove good cause for his actions. Claimant asserts that although he did not clock out, he was officially on break and was permitted to sleep while on break. Claimant stated that on the dates at issue, he had clocked out at various times during his shift but did not take a break because the store was busy. Claimant testified that he was therefore justified in later taking a break and sleeping without clocking out. (N.T., 4/15/14, at 39, 41-42.) The UCBR found this testimony not credible. Issues of witness credibility and evidentiary weight are within the sole discretion of the UCBR, which is the ultimate factfinder. Walsh, 943 A.2d at 368. The testimony credited by the UCBR provides substantial evidence to support the finding that Claimant failed to clock in and out when taking breaks and was sleeping while on duty.
Accordingly, we affirm.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge
ORDER
AND NOW, this 27th day of March, 2015, we hereby affirm the July 8, 2014, order of the Unemployment Compensation Board of Review.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge