Opinion
No. 628 C.D. 2013
11-13-2013
Gregory M. Smith, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY PRESIDENT JUDGE PELLEGRINI
Gregory M. Smith (Claimant) petitions for review of an order of the Unemployment Compensation Board of Review (Board) affirming the Referee's denial of unemployment compensation benefits pursuant to Section 402(e) of the Unemployment Compensation Law (Law) because Claimant violated the Standard Operating Procedures of Berks County (Employer). For the reasons that follow, we affirm the Board.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(e). That section provides, in relevant part:
An employe shall be ineligible for compensation for any week -
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(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.
Claimant worked as an employment specialist in Employer's jail system from October 25, 2010, until August 16, 2012. As part of his job, Claimant was an observer and scribe at contract negotiations between Employer and the Pennsylvania Social Services Union (Union). Employer advised the members of its negotiation team, including Claimant, that only the Chief Counsel was authorized to speak about the negotiations, and that they were prohibited from disseminating any confidential information about the negotiations without the Chief Counsel's consent. On August 10, 2012, during a conversation with the Union's chief steward, Karen Arms (Arms), Claimant indicated that an agreement had been reached between Employer and the Union. After learning of that conversation, Employer placed Claimant on administrative leave and ultimately terminated his employment on September 7, 2012.
Claimant filed for unemployment compensation benefits with the UC Service Center, which denied benefits, and Claimant appealed. Before the Referee, Arnel Wetzel (Wetzel), Employer's Director of Human Resources, testified that Employer terminated Claimant's employment because he "breached confidential information to a union steward regarding negotiations" in violation of Employer's Standard Operating Procedures. (October 25, 2012 Referee Hearing at 3). He testified that all employees receive a copy of the Standard Operating Procedures and must sign an acknowledgment form indicating that they have received and understand those procedures. Employer then introduced Claimant's acknowledgment form into evidence. Regarding Employer's instructions to Claimant and the other members of the negotiation team, Wetzel explained:
Section 2.8 of the Standard Operating Procedures, entitled "Conduct and Behavior," provides that "Employees whether on-duty or off-duty will follow the ordinary and reasonable rules of good conduct and behavior and will not commit any act in an official or private capacity that tends to bring reproach, discredit, or embarrassment to their profession. Employees will follow established procedures in carrying out their duties." (Certified Record at 3; Board's Finding of Fact No. 2). Section 4.2 of the Standard Operating Procedures, entitled "Conduct Unbecoming," provides, in relevant part: "Conduct that adversely affects efficiency, erodes public respect, or reduces confidence in government service is unbecoming and is prohibited." (Certified Record at 3; Board's Finding of Fact No. 3).
[E]very member of the negotiating team was advised number one, that the Chief Counsel would be the chief spokesperson. So any type of information or any type of correspondence[] or even at the table, negotiating at the table, unless instructed would come from Chief Counsel[.] ... In addition, every member was advised, you know, this is, obviously, confidential information. As a team, we will discuss and state from that standpoint, but information was not to be disseminated to any other employees, any other department heads or leadership ... without the consent of ... the Chief Counsel.Id. at 5. Wetzel stated that Claimant never obtained the consent of the Chief Counsel to disseminate information to the Union. Wetzel further testified that Arms contacted Employer after her conversation with Claimant on August 10, 2012, and was upset because she had not previously been made aware that an agreement had been reached. He stated that he immediately contacted Claimant, who admitted to having the conversation with Arms. Wetzel explained that Employer felt it was necessary to terminate Claimant's employment because Claimant's actions constituted "a very serious breach" of confidentiality which negatively impacted the negotiations. (October 25, 2012 Hearing Transcript at 7).
In fact, no agreement had been reached as of that date.
Jessica Weaknecht, Employer's Human Resources Manager, also provided testimony regarding the telephone call from Arms and Employer's disciplinary process. She explained that Employer issued a disciplinary citation to Claimant outlining his violations of the Standard Operating Procedures and scheduled a disciplinary review meeting, but Claimant did not attend that meeting.
Claimant testified that as he was walking into work on August 10, 2012, he said "good morning" to Arms and she responded "maybe for some of us." (January 10, 2012 Hearing Transcript at 11). He stated that he then replied, "I thought you'd be in a good mood that you had a deal" and testified that he was referring to the contract negotiations between Employer and the Union. Id. He explained that he believed an agreement had been reached based on information he received from Beverly Ganter, an administrative officer for Berks County Children and Youth Services and a fellow member of the negotiation team. Claimant testified that he was aware of and understood Employer's confidentiality policies, but felt it was acceptable to talk to Arms about a potential agreement because he was not "releasing any specific or private details" and because he believed Arms, as chief steward of the Union, would already have been aware of any such agreement due to her presence at all of the negotiation sessions. Id. at 13.
Claimant did not attend the initial Referee hearing held on October 25, 2012. However, the Board remanded the matter to a Referee, acting as Hearing Officer for the Board, to receive testimony and evidence on Claimant's reason for his nonappearance at the Referee hearing and on the merits. The Board ultimately found that Claimant established good cause for his nonappearance at the initial Referee hearing, finding credible his testimony that he did not receive the hearing notice and that he has had problems with the delivery of his mail. Accordingly, the Board considered Claimant's testimony on the merits.
Arms also testified and confirmed that Claimant referenced an agreement during their conversation but did not provide her with any specific information.
The Referee concluded that Claimant's actions constituted "a breach of duty owed to [Employer] and was an act so contrary to [Employer's] interests that discharge was a natural result" and, accordingly, affirmed the denial of benefits. (Referee's October 26, 2012 Decision at 2). Claimant then appealed the Referee's decision to the Board, which affirmed, explaining that Employer met its burden of proving that Claimant was discharged for willful misconduct and "[i]rrespective of the fact that an agreement had not been reached, [Claimant] has not established good cause for divulging information to the opposite side of the negotiation team." (Board's April 3, 2013 Decision at 4). This appeal by Claimant followed, in which he argues that his actions did not rise to the level of willful misconduct.
Our review of the Board's decision is limited to determining whether constitutional rights were violated, whether an error of law was committed, or whether necessary findings of fact are supported by substantial evidence. Middletown Township v. Unemployment Compensation Board of Review, 40 A.3d 217, 222 n.8 (Pa. Cmwlth. 2012).
Although the Law does not define the term "willful misconduct," the courts have defined it as:
(1) wanton or willful disregard for an employer's interests; (2) deliberate violation of an employer's rules; (3) a disregard for the standards of behavior which an employer can rightfully expect of an employee; or (4) negligence indicating an intentional disregard of the employer's interest or an employee's duties or obligations.
Here, Employer clearly met its initial burden of proving willful misconduct, as it is undisputed that Claimant was aware of and understood Employer's policies yet disseminated information regarding the negotiations between Employer and the Union in violation of those policies. Thus, the burden shifts to Claimant to show that he had good cause for his conduct. We agree with the Board that Claimant failed to do so. The fact that Claimant thought an agreement had been reached and that Arms would already be aware of such an agreement simply does not excuse him from obeying Employer's instructions to not discuss the negotiations. Moreover, the fact that Claimant did not divulge any "specific or private details" is irrelevant, because Employer's policy prohibited discussion of any type of information regarding the negotiations. Therefore, Claimant's actions were not justifiable or reasonable under the circumstances.
Accordingly, the order of the Board is affirmed.
/s/_________
DAN PELLEGRINI, President Judge ORDER
AND NOW, this 13th day of November, 2013, the order of the Unemployment Compensation Board of Review, dated April 3, 2013, at No. B-550106, is affirmed.
/s/_________
DAN PELLEGRINI, President Judge
Philadelphia Parking Authority v. Unemployment Compensation Board of Review, 1 A.3d 965, 968 (Pa. Cmwlth. 2010). Where a claimant is discharged for a work rule violation, the employer has the burden to show that the claimant was aware that the work rule existed and that the claimant violated the rule. Id. If the employer satisfies its burden, the burden shifts to the employee to show that he or she had good cause for his or her conduct. Grand Sport Auto Body v. Unemployment Compensation Board of Review, 55 A.3d 186, 190 (Pa. Cmwlth. 2012). A claimant has good cause if his or her actions are justifiable and reasonable under the circumstances. Id. Whether an employee's actions constitute willful misconduct is a question of law subject to de novo review and must be determined based on a consideration of all of the circumstances. Id.