IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Consol PA Coal Company,
:
Petitioner
: :
v.
: :
Unemployment Compensation
:
Board of Review,
:
No. 1836 C.D. 2001
Respondent
:
Submitted: January 7, 2002
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge
HONORABLE MARY H. LEAVITT, Judge
HONORABLE JOSEPH T. DOYLE, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE McGINLEY
FILED: February 12, 2002
Consol PA Coal Company (Employer) petitions for review from the
order of the Unemployment Compensation Board of Review that reversed the
referee's denial of benefits pursuant to Section 402(e) of the Unemployment
Compensation Law (Law) and awarded benefits to Michael Black (Claimant).
The facts, as found by the Board, are as follows:
1. The claimant was last employed as a coal miner by Consol Pa. Coal Company from May 16, 2000 . . . . his last day of work was March 6, 2001.
2. On his last day of work the claimant's shift was scheduled to end at 8:00 am [sic] but because of a scheduled test of the ventilation fan the miners were all instructed to leave the mine by 7:30 am [sic].
3. At approximately 5:40 am [sic], while the claimant was out of site [sic] of the rest of his work crew, the crew took the two available man trips (transport cars) stranding the claimant over two miles from the exit portal of the mine.
4. Unable to get any response on the telephone system the claimant walked out of the mine arriving on the surface at 7:15 am [sic].
5. The claimant found his other workers showering and getting ready to prepare to leave the area.
6. The claimant proceeded consistent with accepted past practice when a ventilation fan test was run and exited the premises.
7. The claimant through past practice believed that he was permitted to leave when he did.
8. The claimant was discharged for leaving the work site without permission.
9. The claimant was subjected to disparate treatment as other similarly situated employees, who performed the same action which caused claimant's discharge, were not discharged or otherwise disciplined.
Board Decision (Decision), July 9, 2001, Findings of Fact Nos. 1-9 at 1-2;
Reproduced Record (R.R.) at 74a-75a.
The Board determined that Claimant's actions did not rise to the level
of willful misconduct because Claimant "demonstrated both good cause for the
actions which caused his separation and also that he was subjected to disparate
treatment." Decision at 2; R.R. at 75a.
Employer contends that the Board committed an error of law when it
concluded that Claimant did not commit willful misconduct.
Whether a claimant's conduct rises to the level of willful misconduct
is a question of law subject to our review. Lee Hospital v. Unemployment
Compensation Board of Review, 589 A.2d 297 (Pa. Cmwlth. 1991). Willful
misconduct is defined as conduct that represents a wanton and willful disregard of
an employer's interest, deliberate violation of rules, disregard of standards of
behavior which an employee can rightfully expect from the employee, or
negligence which manifests culpability, wrongful intent, evil design, or intentional
and substantial disregard for the employer's interest or employee's duties and
obligations. Frick v. Unemployment Compensation Board of Review, 375 A.2d
879 (Pa. Cmwlth. 1977). The employer bears the burden of proving that it
discharged an employee for willful misconduct. City of Beaver Falls v.
Unemployment Compensation Board of Review, 441 A.2d 510 (Pa. Cmwlth.
1982). The employer bears the burden of proving the existence of the work rule
and its violation. Once the employer establishes that, the burden then shifts to the
claimant to prove that the violation was for good cause. Peak v. Unemployment
Compensation Board of Review, 509 Pa. 267, 501 A.2d 1383 (1985).
It is undisputed that Employer had a rule against an employee leaving
the workplace without permission from his supervisor, except in circumstances
which prevent the giving of such notice. It is equally undisputed that Claimant
violated this rule when he left the workplace before the end of his shift on March 6,
2001. Employer therefore met its burden of proving that it had a work rule which
Claimant violated.
The burden then shifted to Claimant to establish he had good cause for
the violation. The Board found credible Claimant's testimony regarding the
circumstances of his last day at work as found in Findings of Fact Nos. 2-7,
including Claimant's explanation that, when a fan check is scheduled, employees
routinely leave early.
Claimant was left alone in the mine when the other members of his
crew left him. He attempted to contact a supervisor and inform him about the
situation. Unable to do so, Claimant walked out of the mine, arriving at the exit
fifteen minutes before his shift was over. Given that employees were permitted to
leave early when a fan check was scheduled and that Claimant heard fellow
employees in the locker room and shower room, the Board did not err when it
determined that Claimant established good cause for his violation of Employer's
work rule.
Simply, the Board found Claimant credible. In unemployment
compensation proceedings, the Board is the ultimate fact-finding body empowered
to resolve conflicts in evidence, to determine the credibility of witnesses, and to
determine the weight to be accorded to evidence. Unemployment Compensation
Board of Review v. Wright, 347 A.2d 328 (Pa. Cmwlth. 1975).
Accordingly, we affirm.
____________________________ BERNARD L. McGINLEY, Judge
Notes
The referee questioned Claimant regarding what typically occurs when a fan
check is scheduled:
Q: . . . . There was some place where you stated that other people have left early. . . . . Q: Because they the mine or a fan check.
A: Yes. Guys love it when there's fan checks because they know they can come out early. If the company didn't approve of it, they would keep you in there until like your normal hours. They would just keep you there that whole time.
Notes of Testimony, May 2, 2001, at 19; R.R. at 55a.