Opinion
No. 59 C.D. 2012
08-01-2012
Mendel Steel and Ornamental Iron Company, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE FRIEDMAN
Mendel Steel and Ornamental Iron Company (Employer) petitions for review of an order of the Unemployment Compensation Board of Review (UCBR), dated December 19, 2011, which determined that Paul G. Pasqual (Claimant) is not ineligible for 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 a claimant shall be ineligible for benefits for any week in which his unemployment is due to discharge from work for willful misconduct connected with his work. 43 P.S. §802(e).
The UCBR found as follows. Claimant worked for Employer, full-time, from September 11, 2008, through June 9, 2011. Employer does not have an employee handbook or written work rules. Rather, Employer has a flexible approach to discipline, which is implemented at management's discretion. Since hiring Claimant, Employer has not issued him any written performance appraisals or written disciplinary warnings. (UCBR's Findings of Fact, Nos. 1-5.)
In February 2010, Employer required Claimant and three other employees to take part in a time study, which was aimed at measuring their productivity throughout the work day. Another employee, who was not Claimant's supervisor, asked Claimant why he still was working on the time study when there was more important work to be completed. At some point, Claimant became locked out of the time study and could not begin. Claimant did not tell the program administrator or his supervisor that he was locked out of the program. (UCBR's Findings of Fact, Nos. 6-9.)
Employer asked Claimant why he had not finished the time study, and Claimant informed Employer that he had been locked out. Claimant also told Employer that he had been busy. Employer told Claimant to punch out and go home. Claimant tried to talk to Employer, but Employer told Claimant he was too busy. Employer discharged Claimant for not finishing the time study. Employer did not tell Claimant to return to work the next day. Claimant did not voluntarily quit his job. (UCBR's Findings of Fact, Nos. 10-17.)
To the extent that "Employer" is also construed as a person, that person is Eric Mendel, president of the company.
After Claimant's job ended, he filed for unemployment compensation benefits, which the local job center denied under section 402(b) of the Law. The job center reasoned that Claimant could have returned to work and, therefore, Claimant voluntarily quit his employment without a necessitous and compelling reason. Claimant appealed, and the referee reversed, determining that Employer initiated Claimant's separation from employment. The referee also determined that Claimant did not commit willful misconduct because Employer "was not clear about the requirement of time tracking, was not vigilant about enforcing it, and has not presented reliable evidence that [Claimant] was warned prior to dismissal that his failure to complete time tracking could result in the loss of his employment. . . ." (Referee's Op. at 3.) On appeal by Employer, the UCBR affirmed, reiterating the referee's analysis quoted above. Employer's petition for review to this court followed.
Under section 402(b) of the Law, an employee is ineligible for compensation for any week in which his unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature. 43 P.S. §802(b).
On appeal, Employer argues that the UCBR erred in determining that Employer discharged Claimant because the weight of the evidence establishes that Claimant voluntarily quit. In this regard, Employer asserts that: (1) Claimant admitted Employer did not state Claimant was either suspended or fired, but Claimant assumed he was fired because Employer told him to "get out" and "go home"; (2) Claimant admitted receiving Employer's letter establishing that Employer assumed Claimant quit his job three days after this incident, yet, inexplicably, Claimant did not prepare a reply for almost two weeks, and he waited more than another week to mail it; and (3) Claimant and Employer were family friends. According to Employer, had the UCBR properly considered this evidence, the UCBR would not have incorrectly concluded that Employer discharged Claimant. Employer's argument lacks merit.
Our scope of review is limited to determining whether constitutional rights were violated, whether the adjudication is in accordance with the law and whether the necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.C.S. §704.
Whether a termination of services constitutes a discharge or a voluntary quit is a question of law to be determined by this court. Torsky v. Unemployment Compensation Board of Review, 474 A.2d 1207, 1209 (Pa. Cmwlth. 1984).
Employer essentially requests this court to accept its chosen version of the facts. However, "[t]he law is clear that the [UCBR] is the ultimate finder of fact and arbiter of witness credibility. Thus, as long as the [UCBR's] factual findings are supported by substantial evidence, those findings are conclusive on appeal." Bruce v. Unemployment Compensation Board of Review, 2 A.3d 667, 671 (Pa. Cmwlth.) (internal citation omitted), appeal denied, 608 Pa. 656, 12 A.3d 753 (2010).
Here, the UCBR found that, when Claimant told Employer that Claimant had not completed the time study, Employer told Claimant to punch out and go home; also, when Claimant tried to talk to Employer, Employer said he was too busy. The UCBR further found that Employer did not tell Claimant to return to work the next day. (UCBR's Findings of Fact, Nos. 10-16.) Claimant's credited testimony amply supports these findings. Claimant specifically testified that Employer "told me that he was tired of my nonsense, to go out, punch out and to leave, go home." (N.T., 9/26/11, at 16.) Claimant further stated that Employer was "yelling and telling me to get out," (id.); that, based on this incident, he believed he was being fired, (id. at 17); that Employer never told him he could return the next day if his work habits improved, (id. at 18); and that he never intended to voluntarily resign, (id.). Because substantial evidence supports the UCBR's findings, we will not disturb them on appeal.
Moreover, we note that "[a]n employee may assume that he has been discharged even though the employer has not specifically used words such as 'fired' or 'discharged'. The inference may be made from other language of equal immediacy and finality." Torsky, 474 A.2d at 1209.
Employer argues, in the alternative, that Employer properly discharged Claimant for failing to complete the time study that it assigned him. We note, however, that, in its petition for review, Employer did not raise the issue of Claimant's discharge for willful misconduct for failing to complete the time study. Thus, the issue is waived, and we will not consider it. McCall v. Unemployment Compensation Board of Review, 717 A.2d 623, 624 (Pa. Cmwlth. 1998).
In its petition for review, Employer specifically alleges that Claimant voluntarily quit after Employer disciplined Claimant on June 9, 2011, for failure to complete the time study. (Review Petition, ¶¶ 6-8, 11.) Employer also alleges in its petition for review that Claimant engaged in willful misconduct because he entered Employer's workplace on June 10, 2011, during the lunch hour when no supervisors were present, in order to access his computer to erase certain files. (Id., ¶¶ 9, 12.) However, these last allegations do not form the basis for Employer's willful misconduct argument in its brief to this court. Instead, Employer contends that it met its burden of proving willful misconduct because, "by June 9, 2011, [Claimant] knew that he had to complete time studies, had been on probation for over a year for performance issues and had been warned about [Employer's] dissatisfaction with his failure to complete the time studies. . . ." (Employer's Br. at 11.) Employer's assertions to this court as to why it discharged Claimant are thus not consistent.
Nonetheless, we note that, even had Employer properly preserved the issue, the record sufficiently supports the UCBR's determination that Employer did not clearly inform Claimant that his failure to complete the time study would warrant his dismissal. (See N.T., 9/26/11, at 18, 25.)
Accordingly, we affirm.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge
ORDER
AND NOW, this 1st day of August, 2012, the Order of the Unemployment Compensation Board of Review, dated December 19, 2011, is hereby affirmed.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge