Opinion
No. 1050 C.D. 2014
02-03-2015
Ernest McCollum, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE McGINLEY
Ernest McCollum (Claimant) challenges the order of the Unemployment Compensation Board of Review (Board) that affirmed the referee's denial of benefits under Section 402(e) of the Unemployment Compensation Law (Law).
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(e).
The facts, as initially found by the referee and confirmed by the Board, are as follows:
3. Claimant worked from 10/11/1999 through 10/3/2013 as a Machine Operator. He was paid $13.10 per hour and worked at least 40 per week at what was his only job at the time.
4. Employer has strict rules that call for termination for any theft of company property.
5. Claimant was aware of this rule.Referee's Decision, February 26, 2014, (Decision), Findings of Fact Nos. 3-14 at 1.
6. Employer work rules allow employees who want to take some company property to file a written request. If the request is granted, the employee may then take the property.
7. Claimant had a quantity of clear plastic bags belonging to Employer as he was preparing to leave work for the day on 10/3/2013.
8. Employer has random days where all employee possessions are checked for the possibility that the employee may be trying to remove company property.
9. Employer did a random check on 10/2/2013.
10. As Claimant was leaving, he looked outside a window and saw a check being done for company property.
11. Claimant took the bags out from the container he had them in and put them on a table.
12. Claimant left the bags on the table and exited without taking any company property.
13. Employer considered Claimant's actions as an attempt to steal company property and terminated him for the attempt.
14. Claimant attempted to steal company property.
The referee determined:
In the present case, Employer will terminate any employee for theft of company property. By Employer definition, this includes an attempted theft. Claimant was
aware of the rule. His testimony established that he knew that stealing company property was wrong and that he also knew how to go about getting permission to take company property.
Employer's credible testimony demonstrated that any employee who wants to take company property needs to bring a signed form to either the Plant Manager or Human Resources Manager explaining what the property is and why they want it. The request is then acted upon in due course. This is the procedure explained as well.
Claimant testified that he found these clear plastic bags in an open box in a dumpster. He thought they looked good enough to him and he was going to use them to wrap sandwiches. He had them as he was leaving on 11/3. He remembered that there was a check for possible stolen property the previous day and decided to take the bags and leave them before exiting the building. According to Claimant, he did [not] know anything about a random check on that day. He also decided that since he was getting paid the very next day, he did not need these bags to wrap sandwiches and so decided he would do without. This was his explanation for why he did not get permission to take the bags.
The Referee does not credit Claimant's testimony. Assuming that he did get the bags the previous day, as he stated, he would know when he was going to be paid. He would either take the bags or not take the bags, but knowing that he was going to get paid that next day anyway. These plastic bags, assuming they were in a trash bin, (the Referee does not find this to be the case), would not be of great value. It would have been a simple matter for Claimant to go to Employer and file the request to keep the bags. If they were truly in the bin, as he described, they would have no value to Employer and he would have been allowed to keep them. In short, Claimant's testimony is in no way logical. Nor does it make any sense, for that matter, that Claimant would have been aware of a bag check the day before and believed that there was going to be another bag check the very next day. A random check by Employer would
necessarily imply there was no reason to expect a bag check two days in a row.Decision at 2-3.
The Referee finds as fact that Claimant opened a box of bags or found a box that was already opened and could be used by Employer. He took bags that were usable by Employer without getting permission. He intended to take the bags and use them for items that were not sandwiches (the bags were too big for sandwiches). He saw the bag check in progress as he was looking out a window. He realized he might be caught taking the bags and took them out of his carry bag in the hope that he would not be caught stealing. He was caught and terminated.
Claimant in no way justified what he did. He will be ineligible for benefits as a result.
Claimant appealed to the Board which affirmed, adopted, and incorporated the referee's findings and conclusions.
Claimant contends that the Board erred when it concluded that he committed willful misconduct.
This Court's review in an unemployment compensation case is limited to a determination of whether constitutional rights were violated, errors of law were committed, or findings of fact were not supported by substantial evidence. Lee Hospital v. Unemployment Compensation Board of Review, 617 A.2d 693 (Pa. Cmwlth. 1994).
Whether a Claimant's conduct rises to the level of willful misconduct is a question of law subject to this Court's review. Lee Hospital v. Unemployment Compensation Board of Review, 589 A.2d 297 (Pa. Cmwlth. 1991). Willful misconduct is defined as conduct that represents a wanton and willful disregard of an employer's interest, deliberate violation of rules, disregard of standards of behavior which an employer can rightfully expect from the employee, or negligence which manifests culpability, wrongful intent, evil design, or intentional and substantial disregard for the employer's interest or employee's duties and obligations. Frick v. Unemployment Compensation Board of Review, 375 A.2d 879 (Pa. Cmwlth. 1977). The employer bears the burden of proving that it discharged an employee for willful misconduct. City of Beaver Falls v. Unemployment Compensation Board of Review, 441 A.2d 510 (Pa. Cmwlth. 1982). The employer bears the burden of proving the existence of the work rule and its violation. Once the employer establishes that, the burden then shifts to the Claimant to prove that the violation was for good cause. Peak v. Unemployment Compensation Board of Review, 501 A.2d 1383 (Pa. 1985).
Claimant asserts that while he had a lapse of judgment, he did not attempt to steal any bags and the bags were to be taken to a dumpster for disposal. Further, the Board did not view any videotaped or photographic evidence of his attempt to take the bags in question. He asserts that he did not steal any bags.
Claimant does not dispute that Mrs. Ressler's Food Products Company (Employer) had a policy that prohibited the theft of Employer's property and a procedure was in place whereby an employee could request to take Employer's property by filling out a form and submitting it to the proper office for approval. Claimant argues that he did not attempt to steal any bags.
Clifford English (English), human resources manager for Employer, testified regarding video footage he observed of Claimant with the bags:
So on this particular day, a bag check was being conducted. We do have video footage of Mr. McCollum coming out of work into the locker room, and the way the corridor is set up is in a functioning area of the plant, there's a long corridor. There's the locker room, which is off of it. That leads out into a lunch room, which then has the doors that go to the outside of the plant. They would go through the outside . . . through these doors out to where the guard shack is. That's where employees would sign in and out and go to their cars or go [to] the sidewalk, wherever they're going.Notes of Testimony, February 7, 2014, (N.T.) at 11-12.
. . . .
So on this particular day, video captures Mr. McCollum stopping in the lunch room, looking out through the glass doors. The assumption is . . . there's a bag check happening. He, then, reaches in his bag, takes out a bundle of plastic bags, throws them on a table in the lunchroom. Tidies up his bag again and heads out the door.
The Board did not have to view the tape to make its findings because English described what he watched on the tape.
English explained that he believed that Claimant was planning to steal the bags but saw that Employer was conducting a bag check. N.T. at 12.
Claimant testified regarding the bags:
[O]n this day - October 3rd, we're doing trash this day. And you pick up bins . . . and you take it down . . . a couple blocks away, and you dump it in the dumpster. Inside the bin was a box of bags. I said, ooh, this is a lot
bags here. They don't [sic] supposed to be in the trash. The bags is [sic] in the trashcan. Someone threw them in the trash. Threw some in the trash and I kept some. Put it in my locker . . . okey-dokey. Went back to work the rest of the day.N.T. at 17.
Claimant testified that he did not sign for them because of the length of time it took to receive approval. He also testified that he realized that he did not need the bags because he was getting paid the next day. N.T. at 18. He then threw the bags on the table. N.T. at 19.
The referee did not credit Claimant's explanation. The referee instead found that Claimant took usable bags without permission. When he saw the bag check, he took the bags out of his backpack and threw them on the table to avoid apprehension. The Board adopted these findings and determinations. In unemployment compensation proceedings, the Board is the ultimate fact-finding body empowered to resolve conflicts in evidence, to determine the credibility of witnesses, and to determine the weight to be accorded evidence. Unemployment Compensation Board of Review v. Wright, 347 A.2d 328 (Pa. Cmwlth. 1975). Findings of fact are conclusive upon review provided that the record, taken as a whole, provides substantial evidence to support the findings. Taylor v. Unemployment Compensation Board of Review, 378 A.2d 829 (Pa. 1977).
Employer established that it had a policy against stealing of which Claimant was aware. Claimant argues that because he did not actually take the bags he should not be ineligible for benefits. However this Court has held that attempted theft of an employer's property constitutes willful misconduct even if there is no specific policy involving attempted theft. Louk v. Unemployment Compensation Board of Review, 455 A.2d 766 (Pa. Cmwlth. 1983). Claimant did not have good cause for his actions.
The Board asserts that this Court should affirm on the basis that this pro se Claimant failed to raise any specific issue on appeal to the Board. However, the Board was able to rule on the merits of his appeal, and this Court was able to conduct appellate review. There is no validity to the Board's assertion. --------
Accordingly, this Court affirms.
/s/_________
BERNARD L. McGINLEY, Judge ORDER
AND NOW, this 3rd day of February, 2015, the order of the Unemployment Compensation Board of Review in the above-captioned matter is affirmed.
/s/_________
BERNARD L. McGINLEY, Judge