Opinion
No. 2378 C.D. 2008.
Submitted: June 5, 2009.
Filed: July 20, 2009.
BEFORE: PELLEGRINI, Judge; BUTLER, Judge; KELLEY, Senior Judge.
OPINION NOT REPORTED
Gary L. Young (Claimant) petitions for review of an order of the Unemployment Compensation Board of Review (Board) which affirms a Referee's decision and order denying him unemployment compensation benefits pursuant to 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) provides in pertinent part:
An employe shall be ineligible for compensation for any week —
(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 the act.
Claimant was employed by The Milton S. Hershey Medical Center of the Pennsylvania State University (Employer) as full-time electrician technician. Claimant was discharged by Employer on June 9, 2008, for insubordinate behavior. See Certified Record (C.R.), Employer's Exhibit 1.
Claimant filed an internet claim for unemployment compensation benefits wherein he stated that he was discharged by Employer on June 9, 2008, for violating Employer's overtime rules. C.R. at Item 2. Claimant stated further that he violated the rule based on seniority. Id. In response, Employer stated that Claimant was discharged for failing to twice follow a directive that was issued by his supervisor. Id. at Item 4.
By Notice of Determination mailed on June 30, 2008, the UC Service Center determined that Claimant was eligible for benefits pursuant to Section 402(e) of the Law because Employer failed to provide sufficient information to determine whether the overtime request was reasonable. C.R. at Item 6. As such, the UC Service Center found that Claimant's refusal to work overtime did not constitute willful misconduct. Id.
Employer appealed the UC Service Center's determination and a hearing was held before a Referee. Both Employer and Claimant appeared, with counsel, and presented testimony and documentary evidence. By decision and order mailed on August 21, 2008, the Referee reversed the UC Service Center's determination and denied Claimant benefits pursuant to Section 402(e) of the Law.
Claimant appealed the Referee's decision to the Board. By order mailed on November 26, 2008, the Board adopted the Referee's findings and conclusions and affirmed the Referee's decision. The Referee's findings, as adopted by the Board, are as follows.
Claimant was last employed as a full-time electrician technician by Employer. Claimant was represented by Teamsters Local Union #776 (Union). The collective bargaining agreement (CBA) between Employer and the Union provides that voluntary overtime work shall be offered on the basis of bargaining unit seniority among employees with the same job title in a work area who have signed the overtime list for the designated period. See C.R., Exhibit E-2 (Agreement between The Milton S. Hershey Medical Center and Teamsters Local Union No. 776 for the period July 1, 2007, through June 20, 2010). The CBA provides further overtime work of a sudden emergency nature (such as a break in a water pipe), shall be performed by the employee determined by the supervisor to be the most available and the most able to do the job, without regard for bargaining unit seniority. Id.
Claimant was aware of the provisions of the CBA and was a Union business agent. Claimant had two prior warning letters within a 12 month period in his file for unidentified issues.
Claimant's work covered all electrical issues from the main power substation to low voltage, but did not include work on operating tables. Claimant had a verbal agreement with his co-workers and the supervisor that he would not grieve any incident where he would not be offered overtime noting that he did not wish to work overtime.
Claimant's official work hours are 7:50 a.m. to 4:20 p.m. Employer uses a time clock and the Chronos time keeping system. Employer permits employees to punch in or out plus or minus five minutes of their start or quit times. Because the Chronos system blocks periods of time, employees were able to punch out at 4:13 pm. and be considered to have properly punched out. Claimant and Employer were aware of the fact that employees punched out at 4:13 p.m. on a regular basis.
On May 23, 2008, which was the Friday before the Memorial Day weekend, Claimant, a senior electrician and a junior electrician were working. The trade supervisor of the electrical department, who was also Claimant's supervisor, had a pager to contact his staff of electricians who would report to a telephone to return the call for an assignment when paged.
At 4:10 p.m. on May 23, 2008, the trade supervisor received a telephone call stating that operating room 15 had a power outage. The caller informed the trade supervisor that the operating room was being used and an operation was in progress; therefore, the trade supervisor chose not to use the page to contact his staff of electricians knowing that it was near the end of the day but chose to ascend the stairs to the time clock and locker room area to locate one of the electricians to expedite the response to the call.
The trade supervisor first saw Claimant at the time clock area at 4:12 p.m. and stated to Claimant, "We have a power problem in OR 15. I need you to come with me." Claimant responded, "No," to the trade supervisor. The trade supervisor repeated his statement that there was a power problem in the operating room and that Claimant was needed to come with him. Claimant repeated "No" to the trade supervisor. The trade supervisor immediately moved on to find another electrician to assist in investigating and addressing the problem in the operating room and found the senior electrician who accompanied him to the operating room.
Claimant was aware that the senior electrician was the "on-call" person for the day and that the junior electrician had left work. The trade supervisor was not aware that Claimant had already swiped out for the day on the Chronos system. Claimant left the building and went home.
The trade supervisor reported the incident to the human resource department. Employer's human resource department instructed the associate director of the facilities maintenance to prepare a third warning letter/termination for Claimant.
On June 9, 2008, the trade supervisor and a representative of the human resources department met with Claimant, provided him with the letter and discharged him. Claimant refused to sign the letter and was discharged. Claimant filed a grievance through his Union.
The Referee's conclusions of law based on the foregoing findings, as adopted by the Board, are as follows. The Referee concluded that Claimant's excuses to justify his failure to respond to the trade supervisor's instructions were insufficient to fully condone his actions. Specifically, the Referee concluded, inter alia, that:
[t]he claimant simply refused a direct order from his supervisor twice when the supervisor had abruptly entered the floor and acted with a measure of urgency to obtain assistance for the operating room power outage. The supervisor admitted that he did not specifically say the word "emergency" to the claimant to reinforce the urgency of the problem. The claimant chose to refuse a director [sic] order from his supervisor because of the lateness of the day and the potential of having to work overtime due to the fact that he did not like to work overtime and because he wished to leave promptly on the Friday afternoon prior to the holiday. The claimant did not show any regard for the employer's interests or the well-being of patients who would be in the operating room during the power outage. The claimant used the wording in the contract to justify his actions and carefully word-smithed his answers throughout the hearing. . . . The Referee concludes the claimant's conduct was a refusal of a direct instruction by his supervisor. The instruction was reasonable based on the claimant's work and nature of the work performed by the employer. The [CBA] should not be used to protect an individual who wantonly and willfully disregarded the employer's interests and his duties and obligations to the employer.
In its order, the Board concluded further that:
[t]he claimant testified that had he been issued a direct order, he should and would have complied. The Board credits the supervisor's testimony that he directed the claimant to "come with me." The directive was reasonable and the claimant has not justified his failure to comply. Even if the claimant believed he was not required to work overtime per the union contract, he had an obligation to comply and grieve the issue later.
In his appeal to this Court from the Board's order, Claimant raises two issues: (1) whether Employer sustained its burden of proving willful misconduct where Employer did not communicate that Claimant was required to work overtime because of an emergency and where the CBA clearly permits employees to decline overtime work; and (2) if this Court determines that Claimant violated a direct order, whether Claimant did so with good cause because Employer failed to communicate that it was an emergency and Claimant had already clocked out for the day.
Initially, we note that this Court's review of the Board's decision is set forth in Section 704 of the Administrative Agency Law, 2 Pa.C.S. § 704, which provides that the Court shall affirm unless it determines that the adjudication is in violation of the claimant's constitutional rights, that it is not in accordance with law, that provisions relating to practice and procedure of the Board have been violated, or that any necessary findings of fact are not supported by substantial evidence. See Porco v. Unemployment Compensation Board of Review, 828 A.2d 426 (Pa.Cmwlth. 2003).
Findings of fact are conclusive upon review provided that the record, taken as a whole, contains substantial evidence to support the findings.Taylor v. Unemployment Compensation Board of Review, 474 Pa. 351, 378 A.2d 829 (1977). Substantial evidence is relevant evidence that a reasonable mind might consider adequate to support a conclusion. Hercules v. Unemployment Compensation Board of Review, 604 A.2d 1159 (Pa.Cmwlth. 1992). The Board is the ultimate fact finder and is, therefore, entitled to make its own determinations as to witness credibility and evidentiary weight. Peak v. Unemployment Compensation Board of Review, 509 Pa. 267, 501 A.2d 1383 (1985).
Whether an employee's conduct constituted willful misconduct is a matter of law subject to this Court's review. Miller v. Unemployment Compensation Board of Review, 405 A.2d 1034 (Pa.Cmwlth. 1979). The burden of proving willful misconduct rests with the employer. Brant v. Unemployment Compensation Board of Review, 477 A.2d 596 (Pa.Cmwlth. 1984).
Willful misconduct has been judicially defined as that misconduct which must evidence the wanton and willful disregard of employer's interest, the deliberate violation of rules, the disregard of standards of behavior which an employer can rightfully expect from his employee, or negligence which manifests culpability, wrongful intent, evil design, or intentional substantial disregard for the employer's interest, or the employee's duties and obligations. Frumento v. Unemployment Compensation Board of Review, 466 Pa. 81, 351 A.2d 631 (1976). Willful misconduct is not found where a claimant can show good cause for his actions, i.e., that the actions which resulted in the discharge were justifiable and reasonable under the circumstances. Perez v. Unemployment Compensation Board of Review, 736 A.2d 737 (Pa.Cmwlth. 1999). While the employer bears the burden of proving that a claimant's behavior constitutes willful misconduct, it is the claimant who bears of the burden of proving good cause for his actions. Id.
In support of his appeal, Claimant argues that the Board's determinations, as set forth in the Board's order, are not supported by substantial evidence. Claimant first contends that he testified that he was never given a direct order and that his witness' unrefuted testimony corroborated his testimony. Claimant next contends that the CBA clearly provides employees with the option of declining overtime work unless it is deemed to be of a sudden emergency nature. Claimant argues that since he is permitted to decline ordinary overtime, Employer had to prove that the overtime work in question was in the nature of a sudden emergency in order to sustain its burden of proving willful misconduct.
Claimant points out that the trade supervisor admitted that he did not inform Claimant that it was an emergency situation. Claimant contends that he credibly testified that the trade supervisor did not actually say to him that there was a problem in operating room 15 and that the trade supervisor did not tell him that the operating room was in use at the time. Claimant also contends that his testimony is unrefuted that the trade supervisor indicated at the second step grievance meeting that the supervisor did not give Claimant a direct order. Claimant argues that the evidence shows that the overtime was not a sudden emergency; therefore, he had the option of declining the overtime work and the work should have been assigned to the least senior employee.
Finally, Claimant contends that he had good cause for actions because Employer's request was unreasonable to the extent that he had already clocked out for the day and there was no indication that there was an emergency. Claimant contends further that the trade supervisor's conduct was unreasonable given Employer's usual procedures for such situations. Claimant argues that the trade supervisor should have tried to contact the on-call electrician or the junior electrician first instead of going straight to the locker room in hopes of finding an employee who he knew would already be finished for the day.
In response, Employer argues that despite Claimant's contentions, the issue in this case is simple: whether Claimant's knowing refusal to accompany his supervisor to address a power problem in an operating room is sufficient to constitute willful misconduct. Employer contends that Claimant's refusal to follow his supervisor's reasonable order constituted willful misconduct and that Claimant did not have good cause for his refusal to accompany the trade supervisor to investigate the power problem in operating room 15.
Employer filed a notice of intervention with this Court on January 6, 2009. The Board notified this Court on May 20, 2009, that it would not be filing a brief in this matter.
Upon review, we conclude that the record supports the Board's denial of benefits pursuant to Section 402(e) of the Law. It is well settled that a deliberate refusal to comply with a reasonable demand of an employer ordinarily constitutes willful misconduct. Affalter v. Unemployment Compensation Board of Review, 397 A.2d 863 (Pa.Cmwlth. 1979); Strohecker v. Unemployment Compensation Board of Review, 382 A.2d 160 (Pa.Cmwlth. 1978). This Court recently reaffirmed that disregarding an employer's clear and simple instructions without good cause constitutes willful misconduct. Pearson v. Unemployment Compensation Board of Review, 954 A.2d 1260 (Pa.Cmwlth. 2008)
Herein, the Board found the trade supervisor's testimony credible that he directed Claimant to "come with me." The Board found further that the trade supervisor stated to Claimant, "We have a power problem in OR 15. I need you to come with me." As stated previously herein, the Board is entitled to make its own credibility determinations and it was well within the province of the Board not to accept Claimant's version of the events. Peak. As such, the Board's finding that Claimant was given a directive is supported by substantial evidence.
The Board found further that the directive was reasonable. This finding is also supported by the record in that the trade supervisor testified that he requested that Claimant come with him because there was power problem in operating room 15.
Accordingly, the Board properly found that Claimant's conduct constituted willful misconduct. We now turn to the issue of whether Claimant had good cause for his actions.
We note that Claimant's contentions that he had good cause for his actions are primarily premised on the provisions of the CBA and what Claimant believed his rights were thereunder with respect to overtime work. As pointed out by the Board, even if Claimant believed that he was not required to work overtime per the CBA, he had an obligation to comply with the trade supervisor's directive and grieve the issue later. We also reject Claimant's argument that he had good cause to refuse the trade supervisor's directive because the trade supervisor failed to follow usual procedures. Whether the trade supervisor followed proper procedure in securing an electrician to investigate the power problem is of no moment. Again, Claimant had an obligation to comply with the trade supervisor's directive and grieve the issue later.
The Board's order is affirmed.
ORDER
AND NOW, this 20th day of July, 2009, the order of the Unemployment Compensation Board of Review in the above-captioned matter is affirmed.