Summary
In Chambers v. Unemployment Compensation Board of Review, 13 Pa. Commw. 317, 318 A.2d 422 (1974), we held that it constituted willful misconduct for an employee to report to work in an intoxicated condition.
Summary of this case from Durst Buster Brown v. U. Comp. Bd. of ROpinion
Argued February 7, 1974
April 24, 1974.
Unemployment compensation — Scope of appellate review — Findings of fact — Substantial evidence — Unemployment Compensation Law, Act 1936, December 5, P. L. (1937) 2897 — Words and phrases — Wilful misconduct — Intoxication — Due process — Hearing — Additional evidence — Abuse of discretion.
1. In an unemployment compensation case findings of fact of the referee which are supported by substantial competent evidence and are adopted by the Unemployment Compensation Board of Review are binding upon a reviewing court. [318-19]
2. An employe is ineligible for benefits under the Unemployment Compensation Law, Act 1936, December 5, P. L. (1937) 2897, when he is discharged for wilful misconduct connected with his work which is an act of wanton or wilful disregard of the employer's interest, a deliberate violation of rules, a disregard of behavior standards which an employer has a right to expect or negligence such as to manifest culpability, wrongful intent, or evil design or show an intentional disregard of the employe's duties and obligations. [319-20]
3. An employe reporting to work while intoxicated or drinking intoxicating liquor on the job is guilty of wilful misconduct, particularly when he was previously warned and where such conduct violates administrative rules and regulations applicable to his job. [320]
4. The Unemployment Compensation Board of Review does not violate constitutional due process requirements by deciding an appeal without hearing additional testimony when the parties requested no hearing. The decision to take new evidence rests in the discretion of the Board subject only to judicial review for abuse of such discretion. [320-1]
Argued February 7, 1974, before Judges CRUMLISH, JR., WILKINSON, JR. and MENCER, sitting as a panel of three.
Appeal, No. 939 C.D. 1973, from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Reginald D. Chambers, No. B-117481.
Application to Bureau of Employment Security for unemployment compensation benefits. Application denied. Applicant appealed to the Unemployment Compensation Board of Review. Appeal denied. Applicant appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
Reginald D. Chambers, appellant, for himself.
Sydney Reuben, Assistant Attorney General, with him Israel Packel, Attorney General, for appellee.
This is an appeal from an order of the Unemployment Compensation Board of Review (Board) which disallowed Reginald D. Chambers' (claimant) appeal from a decision of a referee denying him unemployment benefits.
The findings of fact made by the referee, and in effect adopted by the Board, are not seriously disputed by the claimant, and are binding on this Court as supported by substantial competent evidence. Homony v. Unemployment Compensation Board of Review, 11 Pa. Commw. 142, 312 A.2d 77 (1973); Marcantonio v. Unemployment Compensation Board of Review, 10 Pa. Commw. 204, 309 A.2d 462 (1973). Claimant was employed as a driver for the Blue White Bus Lines from March 20, 1972, until February 8, 1973, at an hourly wage of $2.34. On this latter date, he was fired for drinking while on duty in direct contravention of the rules of his employer. Claimant admitted that he had an occasional brandy or beer on stop-overs, and that his employer had previously warned him that if he was caught drinking again he would be fired. Rather, he justified his conduct as that done by all the other bus drivers on his route.
The Bureau of Employment Security, the referee, and the Board each found this conduct to amount to "wilful misconduct," thus disqualifying claimant for compensation under Section 402(e) of the Unemployment Compensation Law, Act of December 5, 1936, Second Ex. Sess., P. L. (1937) 2897, as amended, 43 P. S. § 802 (e). This bane to the indiscreet 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. . . ." This Court has repeatedly accepted the judicial interpretation of "willful misconduct" approved in Harmer v. Unemployment Compensation Case, 206 Pa. Super. 270, 272, 213 A.2d 221, 223 (1965): "Misconduct within the meaning of an unemployment compensation act excluding from its benefit an employee discharged for misconduct must be an act of wanton or wilful disregard of the employer's interest, a deliberate violation of the employer's rules, a disregard of standards of behavior which the employer has the right to expect of his employe or negligence in such degree or recurrence as to manifest culpability, wrongful intent, or evil design, or show an intentional and substantial disregard of the employer's interest or the employe's duties and obligations to the employer." See Sun Shipbuilding Dry Dock Company v. Unemployment Compensation Board of Review, 10 Pa. Commw. 289, 310 A.2d 449 (1973); DiAmico v. Unemployment Compensation Board of Review, 10 Pa. Commw. 286, 310 A.2d 433 (1973).
It is apparent that the actions of claimant in the instant case fall within this definition of wilful misconduct. The Courts of this Commonwealth have consistently held that an employe who reports for work in an intoxicated condition or imbibes of intoxicating liquor while on the job is guilty of wilful misconduct. Cornyn v. Unemployment Compensation Board of Review, 12 Pa. Commw. 447, 316 A.2d 158 (1974); Klink v. Unemployment Compensation Board of Review, 5 Pa. Commw. 62, 289 A.2d 494 (1972); Adams v. Unemployment Compensation Board of Review, 186 Pa. Super. 417, 142 A.2d 207 (1958). Significantly in this case, claimant continued to drink after specific and repeated warnings by his employer of the consequences of such behavior, and his drinking while on duty was clearly in violation of Rule 17 (c) of the Bus and Taxi-Cab Regulations promulgated by the Pennsylvania Public Utility Commission, and under which his employer was subject as a common carrier.
Adopted April 15, 1946.
Notwithstanding his admitted indiscretion, claimant argues before this Court that the Board denied him due process of law by disallowing his appeal without taking additional evidence which he alleges was discovered after his hearing before the referee. Initially, we find it difficult to understand how the Board can be faulted for not hearing additional testimony when claimant never requested a hearing. See Hiram Wible Son v. Keith, 8 Pa. Commw. 196, 302 A.2d 517 (1973). Claimant apparently relies upon Section 504 of the Unemployment Compensation Law, 43 P. S. § 824, which required the Board to "afford the parties and the department reasonable opportunity for a fair hearing." The Board, however, is not required to provide a hearing as a matter of right, and it may decide an appeal without taking additional evidence or hearing oral argument, 34 Pa. Code § 101.104(a) ; Lodge v. Unemployment Compensation Board of Review, 194 Pa. Super. 626, 169 A.2d 305 (1961); Davidson Unemployment Compensation Case, 189 Pa. Super. 543, 151 A.2d 870 (1959). Of course, the exercise of this discretion by the Board in not taking additional evidence remains subject to judicial review for abuses thereof, see Erie Resistor Corporation v. Unemployment Compensation Board of Review, 194 Pa. Super. 278, 166 A.2d 96 (1961), but the record here clearly supports the determination made by the referee and approved by the Board.
Claimant, who quite effectively argued his case before this Court in propria persona, had notice that the Board could dismiss his appeal without a hearing. The appeal form provides on its reverse side: "The Board members review the previously established record in connection with each Petition for a further appeal from the Referee's decision. The Board may allow or disallow any petition for further appeal without hearing solely on the basis of the Petition and the record."
Affirmed.