IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Jared M. Bernstein,
Petitioner
v.
Unemployment Compensation Board of Review,
Respondent
No. 863 C.D. 2004
Submitted: October 22, 2004
BEFORE: HONORABLE JAMES GARDNER COLINS, President Judge
HONORABLE DORIS A. SMITH-RIBNER, Judge
HONORABLE JESS S. JIULIANTE, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE SMITH-RIBNER
FILED: December 16, 2004
Jared M. Bernstein, (Claimant) petitions the Court for review of the March 12,
2004 order of the Unemployment Compensation Board of Review (Board) affirming
the Referee's decision that Claimant was ineligible for benefits under Section
402(e) of th e Unemployment Compensation Law (Law), Act of December 5, 1936,
Second Ex . Sess., P.L. (1937) 2897, as amended , 43 P.S.
$802(e) (willful misconduct). Claimant questions whether the Board's finding that
Claimant violated the policy of his Em ployer (NCO Financial) without proper
cause was legally sufficient to warrant a finding of willful misconduct; whether
the Employer failed to prove th at Claimant's being in AUX (log off of Employer's
phone lines) time for more than two hours was intentional and deliberate as required
by Section 402(e) of the Law; and whether a constitutional error was committed when
the Referee fa iled to issue a subpoena to Employer to compel the production of
relevant documents at the hearing.
The Board adopted the Referee's following Findings of Fact:
1. The claimant was last employed by NCO Financial as a client services liason
earning $11.04 per hour. He was employed for 2 years, and his last day of work
was August 21, 2003.
2. The employer is a phone center that services customer accounts.
3. The employer has a policy which provides that employees must be logged on the
phone system ready to receive phone calls for 6 hours per day.
4. The employer allows 2 hours for lunch breaks, work breaks, and for miscellaneous
reasons. During this time employees are not expected to log onto the phone system.
5. The claimant was aware or should have been aware of these policies.
6. The claimant experienced problems in the performance of his job duties.
7. On May 21, 2003, the claimant received a final warning regarding his job
responsibilities.
8. On August 20, 2003, the em ployer became aware that the claim ant was not
logged onto the phone system for a period of 2 hours and 56 minutes.
9. On August 21, 2003, the employer met with the claimant regarding this matter.
10. The claimant was unable to explain the reason that that he was logged off the
phone system for m ore than 2 hours.
11. The claimant was discharged for his vi olation of company policy after warning.
The Board initially noted its decisi on to deny Claimant' s request for a remand
hearing for lack of good cause. The Board next indicated that it would resolve
conflicts in the testimony in favor of Employer. Claimant had testified that he
requested permiss ion from a supervisor to enter AUX ti me to work on a special
project for Citibank. However, the Board determined that Claimant's testimony
was not credible because an Employer witness testified that Claimant had not
offered this explanation when he was terminated. The Board reasoned that even
if Claimant's explanation was credible, Claimant was in AUX time for 30 minutes for
which he could not account. Accordingly, the Board affirmed the Referee, denied
benefits and determined that Claima nt had comm itted willful misconduct in
violation of Section 402(e) of the Law.
The Court' s review is limited to determining whether constitutional rights
were violated, whether an error of law was committed, whether a practice or
procedure of the agency was not followed and whether the findings of fact are
supported by substantial evidence in the record. See Graham v. Unemployment
Compensation Board of Review, 840 A.2d 1054 (Pa. Cmwlth. 2004). The Board is
the ultimate fact finder and has authority to resolve evidentiary conflicts
and to determine witness credibility. Id. The employer bears the burden
of proof in willful misconduct cases. Campbell v. Unemployment Compensation
Board of Review, 694 A.2d 1167 (Pa. Cmwlth. 1997). Willful misconduct has
been defined as a wanton or willful disregard of the employer's interest,
a deliberate violation of the employer's rules , disregard of standards of
behavior which an employer can rightfully expect from an employee or
negligence indicating intentional disregard of the employer' s interest
or of the employee's duties or obligations. Frumento v. Unemployment
Compensation Board of Review, 466 Pa. 81, 351 A.2d 631 (1976).
Claimant first contends that Geslao v. Unemployment Compensation Board of
Review , 519 A.2d 1096 (Pa. Cmwlth. 1987), requires an intentional and
deliberate violation of a work rule to justify a finding of willful
misconduct. He relies principally on Rung v. Unemployment Compensation
Board of Review , 6 89 A.2d 999 (Pa. Cmwlth. 1997), where this Court held
that while a bank teller's undoubtedly careless errors in distributing
money constituted negligence rather than intentional and deliberate
misconduct and may have warranted discharge, the teller was not automatically
disqualified from receiving unemployment benefits. Claimant also cites
Myers v. Unemployment Compensation Board of Review , 5 33 Pa. 373, 625
A.2d 622 (1993), where a truck driver's three separate collisions were
not deemed willful misconduct when the accidents were the result, at most,
of the employee's negligence rather than his intentional or deliberate conduct.
Claimant argues that because he had never been reprimanded for excessive
AUX time, his one-time violation was not evidence of intentional and
deliberate misconduct but rather was evidence of mere negligence. He
notes the testimony of Employer's witness, Bob Aller, that Employer issued
no complaints, write-ups or warnings to Claimant about his job performance
after the May 2003 warning and that he had never been written up for abuse
of AUX time. Claimant urges the Court to take note of discrepancies
between Aller's testimony and Employer's termination summary regarding
their portrayal of the AUX policy. In response, the Board notes initially
that Claimant has failed to challenge specific Findings of Fact and,
as a result, that they are conclusive on appeal. Salamak v. Unemployment
Compensation Board of Review, 497 A.2d 951 (Pa. Cmwlth. 1985). The Board
then distinguishes the present case from Rung by pointing out that Claimant
did not offer any reason for his overuse of AUX time when he was discharged,
unlike the claimant in Rung who immediately acknowledged her error. In
Grieb v. Unemployment Compensation Board of Review , 573 Pa. 594, 827 A.2d
422, (2003), a substitute teacher accidentally brought three shotguns
onto school property and left the guns locked in her vehicle. This act
violated an employer policy and resulted in her discharge. The court
reversed the denial of benefits, holding that "[t] here is no indication
in the record that the conduct of Grieb was recurring or that it involved
a substantial disregard of the District's interest. Here, instead, the
record reflects that the actions of Grieb were merely negligent and not
intentional or deliberate." Id., 573 Pa. at 601, 827 A.2d at 426
(citation omitted). In Myers the court held that negligence will
rise to the lev el of willful m isconduct only if "it is of ' such
a degree or recurrence as to manifest culpability, wrongful intent ...
or show an intentional and substantial disregard of the employer's
interest or of the employee's duties and obligations....'" Myers, 533
Pa. at 378, 625 A.2d at 625 (quoting Coleman v. Unemployment Compensation
Board of Review, 407 A.2d 130, 131-32 (Pa. Cmwlth. 1979)). Assuming
arguendo that on August 20, 2003 Claimant was in AUX time for 56 minutes
longer than the two hours Employer allotted, the Court cannot conclude
that this conduct alone rises to the level of willful misconduct.
Nowhere in the record is it established that Claimant's behavior was
either intentional or deliberate, particularly when Aller testified that
Claimant performed his job duties after May 2003 without complaint, write
up or warning and that Employer had not been required to specifically
warn Claimant about overuse of AUX time. See Greib. Absent Employer's
showing of intentional or deliberate behavior on Claimant's part, the Board
committed an error of law in ruling that Claimant was disqualified from
receiving benefits under Section 402(e) of the Law. Id.
The Court therefore reverses the Board's order.
DORIS A. SMITH-RIBNER, Judge