Opinion
No. 82 C.D. 2013
07-18-2013
Andrew Williams, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE BROBSON
Petitioner Andrew Williams (Claimant), pro se, petitions for review of an order of the Unemployment Compensation Board of Review (Board). The Board affirmed the Unemployment Compensation Referee's (Referee) decision denying Claimant unemployment compensation benefits pursuant to Section 402(e) of the Unemployment Compensation Law (Law), based on willful misconduct. For the reasons set forth below, we affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e).
Claimant filed for unemployment compensation benefits subsequent to his discharge from employment with JTM Foods, LLC (Employer) as a maintenance worker. The Erie UC Service Center (Service Center) determined that Claimant was ineligible for unemployment compensation benefits under Section 402(e) of the Law. (Certified Record (C.R.), Item No. 4.) Claimant appealed the Service Center's determination, and a Referee conducted a hearing. Following the hearing, the Referee issued a decision in which she affirmed the Service Center's determination and found Claimant ineligible for unemployment compensation benefits. (C.R., Item No. 9.)
At the hearing before the Referee, Employer presented the testimony of Shirley Kelley, Employer's Human Resources Manager. Employer also presented the testimony of Scott Klick, Maintenance Coordinator, and Joseph Amboyer, Maintenance Manager. Claimant testified on his own behalf.
Mr. Klick testified mainly about events that occurred the evening of August 8, 2012. (C.R., Item No. 8 at 5.) Mr. Klick testified that he witnessed Claimant enter the break room at 11:00 p.m. and did not see him re-emerge from the break room until 11:50 p.m. (Id.) Mr. Klick also testified that he followed Claimant into the break room because he was informed that Claimant had taken a break at 10:00 p.m., but Claimant was not there. (Id.) Mr. Klick testified that he proceeded to check the outdoor break areas for Claimant and both processing lines, but did not locate him. (Id. at 8-9.) Mr. Klick testified that he went back to the production floor and proceeded to watch the sole entrance to the production floor and both processing lines for the next fifty minutes. (Id. at 7.) Mr. Klick testified that at 11:50 p.m., he observed Claimant returning from the break room. (Id. at 6.) He subsequently sent Claimant home for taking an unauthorized extended break. (Id.) Mr. Klick further testified that he did not authorize Claimant to take any additional breaks on August 8, 2012. (Id. at 13.)
Mr. Amboyer testified mainly about the meeting he held with Claimant the morning following the August 8th incident. (Id. at 9.) Mr. Amboyer testified that he informed Claimant that Claimant received his fifth written warning and would be terminated pursuant to Employer's policy. (Id. at 10.) Ms. Kelley added that the Employee Handbook includes a policy that provides that receipt of five written warnings will result in discharge. (Id. at 14.) Mr. Amboyer also testified that he instructed Claimant to write on the termination notice any comments or disagreements he had with the reasoning on the notice. (Id.) Mr. Amboyer also testified that Employer's policy only allots two fifteen minute breaks and one thirty minute lunch break over an eight hour shift. (Id. at 12.)
In response, Claimant testified that he took his break at 11:40 p.m. on the evening of August 8, 2012. (Id. at 16.) Claimant testified that he entered the break room at 11:00 p.m. to retrieve the keys to the supply closet from his co-worker, Greg Johannes, and when he could not find Mr. Johannes he went back to his processing line until 11:40 p.m. (Id. at 17.) Claimant further testified that he took his fifteen minute break at 11:40 p.m. and then proceeded outside to use the portable restrooms, because the facility's restrooms were not working. (Id. at 18). Claimant admitted that he knew he had to ask for an additional break if he needed one, but he did not ask for one that evening. (Id. at 19.) Claimant testified that he wrote in the comments section of the written warning that he was gone for twenty-five minutes, because he did not believe the time he spent in the restroom counted towards his break time. (Id. at 20.)
Following the hearing, the Referee issued a decision, which affirmed the Service Center's determination denying unemployment compensation benefits pursuant to Section 402(e) of the Law. (C.R., Item No. 9.) Claimant appealed the Referee's order to the Board, which affirmed the Referee's decision denying Claimant unemployment compensation benefits. (C.R., Item No. 11.) In doing so, the Board made the following relevant findings of fact:
1. The claimant was last employed as a maintenance worker by JTM Foods, LLC from May 2011, at a final rate of $14.65 per hour and his last day of work was August 8, 2012.
2. The employer has a policy allowing employees to take two fifteen-minute breaks and one half-hour lunch break per eight-hour shift; for shifts over eight hours, employees can be provided with additional breaks at the supervisor's discretion.
3. The employer also has a progressive disciplinary policy stating that if an employee receives five written warnings within a rolling twelve-month period, the employee will be discharged.
4. The claimant was aware of the employer's policies.
5. On February 29, 2012, the claimant was given a written warning for a safety violation and for failing to follow a direct memo from the employer.
6. On April 26, 2012, the claimant was given a written warning for leaving his toolbox unlocked.
7. On May 21, 2012, the claimant was given a written warning for poor work habits.
8. On June 19, 2012, the claimant was given a written warning for failing to inform the employer that he had removed a drive chain from the canon mixer. This written warning advised the claimant that any further written warnings would result in discharge.
9. The claimant was working the third shift from August 8, 2012, until August 9, 2012, from 8:00 p.m. until 6:30 a.m.
10. The employer's witness saw the claimant leave the building at 11:00 p.m.(C.R., Item No. 9.)
11. The employer's facility is wide[-]open, giving supervisors and managers the ability to observe the sole entrance into the facility, as well as each manufacturing line.
12. The employer's witness watched the sole entrance of the facility between 11:00 and 11:50 p.m. and did not see the claimant re-enter the facility.
13. The employer searched for the claimant inside and outside, but was unable to find him until 11:50 p.m., when the claimant re-entered the building.
14. When the claimant re-entered the building at 11:50 p.m., the employer sent him home for taking an unauthorized extended break.
15. On August 9, 2012, the claimant was given his fifth written warning for taking an unauthorized break the prior evening.
16. The employer discharged the claimant for receiving five written warnings within a rolling twelve-month period.
The Board found Employer's testimony to be credible, and, based on that testimony, the Board found that Claimant violated a work rule when he took an unauthorized extended break in violation of Employer's policy. (C.R., Item No. 11.) The Board found that Claimant's unauthorized extended break was Claimant's fifth written violation in a twelve month period, and, in accordance with Employer's policy, Employer terminated Claimant's employment. (Id.) The Board, therefore, concluded that Claimant engaged in willful misconduct and it denied benefits under Section 402(e) of the Law. (Id.) Claimant now petitions this Court for review of the Board's order.
On appeal, Claimant argues that the Board's findings of fact are not supported by substantial evidence. Claimant also argues that the Board erred in concluding that Claimant's actions constituted willful misconduct.
This Court's standard of review 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. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704.
First, Claimant challenges findings of fact numbers 10, 11, 12, 13, and 14, arguing that substantial evidence of record does not exist to support those findings. Substantial evidence is defined as relevant evidence upon which a reasonable mind could base a conclusion. Johnson v. Unemployment Comp. Bd. of Review, 502 A.2d 738, 740 (Pa. Cmwlth. 1986). In determining whether there is substantial evidence to support the Board's findings, this Court must examine the testimony in the light most favorable to the prevailing party, giving that party the benefit of any inferences that can logically and reasonably be drawn from the evidence. Id. A determination as to whether substantial evidence exists to support a finding of fact can only be made upon examination of the record as a whole. Taylor v. Unemployment Comp. Bd. of Review, 474 Pa. 351, 355, 378 A.2d 829, 831 (1977). The Board's findings of fact are conclusive on appeal only so long as the record taken as a whole contains substantial evidence to support them. Penflex, Inc. v. Bryson, 506 Pa. 274, 286, 485 A.2d 359, 365 (1984). In an unemployment case, the Board is the final finder of fact and arbiter of credibility. Johnson v. Unemployment Comp. Bd. of Review, 744 A.2d 817, 820 (Pa. Cmwlth. 2000). The Board is also empowered to resolve conflicts in evidence. DeRiggi v. Unemployment Comp. Bd. of Review, 856 A.2d 253, 255 (Pa. Cmwlth. 2004).
Claimant also challenges finding of fact number 1, arguing that his final rate of pay was $14.75 per hour and not $14.65 per hour. The Board acknowledges in its brief that Claimant's rate of pay was $14.75 per hour. (Respondent's Brief at 3 n.2). Thus, we agree with Claimant that finding of fact number 1 is not supported by substantial evidence of record. Nonetheless, such a mistake in the finding of fact as to Claimant's hourly rate is not relevant to whether the Board erred in denying benefits based on willful misconduct.
As to finding of fact number 10, Claimant argues that substantial evidence does not exist to support the Board's finding that Employer's witness saw Claimant leave the building at 11:00 p.m. Claimant argues that Employer's witness only saw Claimant enter the break room at 11:00 p.m., but the witness did not see Claimant return to work less than a minute later. Claimant argues he went to the break room to look for a co-worker to retrieve the supply closet keys. A review of the record reveals that Scott Klick, Employer's Maintenance Coordinator, testified at the hearing before the Referee that he saw Claimant enter the break room at 11:00 p.m. (C.R., Item No. 8 at 5.) Mr. Klick testified that he immediately followed Claimant into the break room, and Claimant was not in the break room. A co-worker informed Mr. Klick that Claimant had gone outside. (Id.) Mr. Klick testified that he proceeded to look for Claimant outside, but he did not see Claimant. (Id.) As the fact-finder, the Board was entitled to credit the testimony of Mr. Klick, and Mr. Klick's testimony constitutes substantial evidence to support the Board's finding that he saw Claimant leave the building at 11:00 p.m.
As to finding of fact number 11, Claimant argues that substantial evidence does not exist to support the Board's finding that Employer's facility is wide-open, thus giving supervisors and managers the ability to observe both the sole entrance to the facility and the manufacturing line. To the contrary, Claimant contends that the facility is large and his supervisor, Mr. Klick, would be unable to see the Crispy processing line from the Pie processing line. Mr. Klick testified, however, that Employer's shop is wide-open and allows him to stand in one place on the production floor to watch both lines and the break room door. (Id. at 9.) Mr. Klick further testified that he would be able to see the break room door, which is the sole exit in the facility, from either end of both processing lines. (Id.) Claimant did not offer any testimony concerning the size of the facility or the location of the processing lines with regard to the break room door. The Board credited Mr. Klick's testimony, which is well within its discretion. (C.R., Item No. 11.) As previously stated, in an unemployment case, the Board is the ultimate fact finder and entitled to make its own determinations as to witness credibility and evidentiary weight. Johnson, 744 A.2d at 820; DeRiggi, 856 A.2d at 255. Based on Mr. Klick's credited testimony, there is substantial evidence of record to support the Board's finding.
As to finding of fact number 12, Claimant argues that Employer's witness could not have monitored the sole entrance to the building from 11:00 until 11:50 p.m., because Employer's witness was working on a processing line at that time. A review of the record indicates that Employer's witness, Mr. Klick, testified that he could visibly see the break room door, which is the only entrance to the facility, from the production floor where he stood from 11:00-11:50 p.m. (C.R., Item No. 8 at 9.) Mr. Klick testified that he never saw Claimant re-enter through that entrance until 11:50 p.m. (Id.) Claimant testified that he re-entered the facility at 11:00 p.m. when he did not find Greg Johannes in the break room, and Claimant went back to work on his processing line. (Id. at 17.) The Board, however, credited Mr. Klick's testimony, which is within its discretion. (C.R., Item No. 11.) Thus, based on Mr. Klick's credited testimony, there is substantial evidence of record to support the Board's finding that Employer's witness watched the sole entrance from 11:00-11:50 p.m. and did not see Claimant re-enter the facility.
As to finding of fact number 13, Claimant argues that Employer did not search for him on the production floor or outside, because Employer would have found Claimant on one of the processing lines if Employer had searched. Employer's witness, Mr. Klick, testified that he searched for Claimant in the break room and in the two outdoor break areas, but he did not find Claimant. (C.R., Item No. 8 at 7.) Mr. Klick also testified that he checked both processing lines and did not find Claimant. (Id. at 8-9.) Mr. Klick testified that he did not see Claimant re-enter the building until 11:50 p.m., when Claimant emerged from the break room entrance. (Id. at 5.) The Board accepted Mr. Klick's testimony as credible. (C.R., Item No. 11.) Based on Mr. Klick's credited testimony, there is substantial evidence of record to support the Board's finding that he looked for Claimant inside and outside of the building but did not find him until 11:50 p.m.
As to finding of fact number 14, Claimant argues that Mr. Klick found Claimant when Claimant re-entered the production floor from the break room and not the building itself. Mr. Klick testified that at 11:50 p.m., he exited the production floor through the break room door and, at that time, Claimant was entering the production floor through the break room door. (C.R., Item No. 8 at 5.) Whether Mr. Klick found Claimant at the break room door or at the building entrance to the break room is immaterial to the fact that Claimant took an unauthorized extended break. Moreover, Mr. Klick's testimony on this finding is sufficient to constitute substantial evidence. Claimant admits that he was sent home by Mr. Klick thereafter. (Id. at 17.)
Next, we will address Claimant's argument that the Board erred in concluding that Claimant engaged in willful misconduct. Section 402(e) of the Law provides, in part, that an employee shall be ineligible for compensation for any week in which "his unemployment is due to his discharge or temporary suspension from work for willful misconduct connected with his work." The employer bears the burden of proving that the claimant's unemployment is due to the claimant's willful misconduct. Walsh v. Unemployment Comp. Bd. of Review, 943 A.2d 363, 369 (Pa. Cmwlth. 2008). The term "willful misconduct" is not defined by statute. The courts, however, have defined "willful misconduct" as:
Whether or not an employee's actions amount to willful misconduct is a question of law subject to review by this Court. Nolan v. Unemployment Comp. Bd. of Review, 425 A.2d 1203, 1205 (Pa. Cmwlth. 1981).
(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.Grieb v. Unemployment Comp. Bd. of Review, 573 Pa. 594, 600, 827 A.2d 422, 425 (2003).
An employer, seeking to prove willful misconduct by showing that the claimant violated the employer's rules or policies, must prove the existence of the rule or policy, and that the claimant violated it. Walsh, 943 A.2d at 369. The employer must establish that the employee's actions were intentional or deliberate. Tongel v. Unemployment Comp. Bd. of Review, 501 A.2d 716, 717 (Pa. Cmwlth. 1985). "[A]n inadvertent violation of an employer's rule may not constitute willful misconduct." Eshbach v. Unemployment Comp. Bd. of Review, 855 A.2d 943, 947 (Pa. Cmwlth. 2004). Once an employer has met its burden, however, the burden then shifts to the claimant to show good cause as justification for the conduct considered willful. McKeesport Hosp. v. Unemployment Comp. Bd. of Review, 625 A.2d 112, 114 (Pa. Cmwlth. 1993). The employee establishes good cause where his actions are justified or reasonable under the circumstances. Chapman v. Unemployment Comp. Bd. of Review, 20 A.3d 603, 607 (Pa. Cmwlth. 2011).
When an employer has a specific disciplinary policy the employer must follow that policy in order for the employee's conduct to be considered willful misconduct. Frigm v. Unemployment Comp. Bd. of Review, 624 A.2d 629, 634 (Pa. Cmwlth. 1994); PMA Reinsurance Corp. v. Unemployment Comp. Bd. of Review, 558 A.2d 623, 626 (Pa. Cmwlth. 1989). If the employer has a specific disciplinary system, then an employee is considered to be put on notice that conduct will not be considered adverse to the employer's interest until the employee commits the requisite number of violations. Id.
In this instance, the Board found that Employer has a progressive disciplinary policy, which dictates that if an employee receives five written warnings within a rolling twelve-month period, then the employee will be discharged. Claimant received five written warnings between February 29, 2012, and August 9, 2012, and, therefore, the five warnings were within a twelve-month period. As a result, Employer discharged Claimant pursuant to its progressive discipline policy.
Specifically, the Board found, and Claimant does not dispute, that Claimant received his first written warning for a safety violation and failing to follow the direct memo of employer on February 29, 2012. (C.R., Item No. 11.) Claimant received his second written warning on April 26, 2012, for leaving his toolbox unlocked. (Id.) Claimant received his third written warning for poor work habits on May 21, 2012. (Id.) On June 19, 2012, Claimant received his fourth written warning for failing to inform Employer that he removed a drive chain from the canon mixer. (Id.) The June 19, 2012, warning also advised him that any further written warnings would result in discharge. (Id.)
Claimant argues that the incident in question does not constitute willful misconduct because Claimant did not violate Employer's break policy. The Board, however, found otherwise. Specifically, the Board found that Claimant took an unauthorized fifty minute break when Employer witnessed him leave the production floor at 11:00 p.m. and return at 11:50 p.m. Even if the Board chose to credit Claimant's testimony that he took a twenty-five minute break, Claimant's actions still violate the Employer's policy that only allows a fifteen minute break. The Board found that Claimant was aware of Employer's policy allowing employees to take two fifteen minute breaks and one thirty minute lunch during an eight-hour shift and also was aware of Employer's progressive disciplinary policy. Based on Employer's credited testimony that Claimant took an unauthorized fifty minute break, which resulted in his fifth written warning during a rolling twelve-month period, the Board did not err in concluding that Claimant's actions constituted willful misconduct.
Claimant presents two good cause defenses for his conduct. First, Claimant contends that because he worked a ten-hour shift, he should be given additional break time as stated in the Employee Handbook. Employer allows additional break time if an employee is working a shift longer than eight hours at the supervisor's discretion. (C.R., Item No. 8 at 12.) Claimant admitted that he did not request additional break time that evening from his supervisor. (Id. at 18.) Thus, Claimant argues that he had good cause for his actions because he worked a ten-hour shift (as opposed to an eight-hour shift) and was entitled to additional break time fails.
Second, Claimant argues that he spent part of his unauthorized extended break time walking to and from the restrooms, which were located outdoors. Claimant testified that the facility's restrooms were out of service on the evening of August 8th. (Id. at 18.) As a result, he had to go outside to use the portable restrooms. (Id.) Claimant testified that he did not believe that restroom breaks counted towards his break time. (Id. at 20.) Here, the Board credited Employer's testimony that Claimant took a fifty minute break, which if we accept Claimant's reasoning, would mean that Claimant took a thirty-five minute restroom break. A thirty-five minute restroom break is not the type of conduct an employer would rightfully expect from an employee, absent extenuating circumstances. Thus, Claimant argues that he needed the extra break time to travel to the restrooms that were located outside the facility fails. Because Claimant offers no evidence suggesting that he had good cause for violating Employer's work rule, the Board did not err in concluding that Claimant engaged in willful misconduct.
In his brief, Claimant also argues that if Mr. Klick wanted to find him during the fifty minute period, then Mr. Klick could have radioed for him because Claimant keeps his radio on at all times. (Claimant's Brief at 13.) Claimant failed to present this defense at the hearing before the Referee or in his petition for review. Regardless, this defense does not excuse Claimant's conduct at issue here, because Claimant still took an unauthorized fifty minute break regardless of whether his supervisor radioed to find him or not. --------
Accordingly, the order of the Board is affirmed.
/s/_________
P. KEVIN BROBSON, Judge ORDER
AND NOW, this 18th day of July, 2013, the order of the Unemployment Compensation Board of Review is hereby AFFIRMED.
/s/_________
P. KEVIN BROBSON, Judge