Opinion
No. 1679 C.D. 2012
06-25-2013
Anna J. Bates, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE LEADBETTER
Claimant Anna J. Bates petitions for review of the order of the Unemployment Compensation Board of Review (Board), which affirmed the denial of unemployment compensation benefits on the ground that she was discharged for willful misconduct. The primary issues raised on appeal are whether Bates demonstrated good cause for violating her employer's work rule and whether her employer violated its progressive discipline policy when it terminated her. After review, we affirm.
A claimant who is discharged for willful misconduct is ineligible for benefits 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).
According to the Board's findings of fact, Bates was employed as a Corrections Officer by Community Educational Center (Employer) until she was terminated on March 6, 2012, for improperly leaving her post. At the time of her termination, Employer's work rules and the applicable collective bargaining agreement (CBA) both provided that abandoning a duty post without authorization or proper relief would result in termination. Bates was aware of these provisions. On the date of her discharge, Bates was assigned to work in the control room, where she was required to monitor movement of inmates, control cell doors, cover the phones, secure the control room, maintain a key to the control room and assure that the control room was locked at all times.
In addition to adopting the referee's findings and conclusions, the Board articulated additional credibility determinations and engaged in additional fact-finding.
On March 6, Bates left the control room because she was concerned that she had been credited with hours that she had not actually worked. When she left the control room, she walked by her supervisor, who was on duty, stating that she was going to the office to fix her hours. Bates did not ask her supervisor for permission to leave the control room and permission was not given to leave her post. As a result, the control room was left unattended. Bates was subsequently terminated for her conduct. At the hearing, Bates admitted that she violated the prohibitions against leaving her post but offered reasons to excuse her conduct.
Apparently, according to the supervisor's testimony, an inmate was brought into the unit while Bates was gone and the officers were unable to put him/her into a cell due to Bates's absence.
According to Employer's documentary evidence, which the referee admitted without objection, Employer concluded that Bates's conduct violated: (1) the CBA provisions prohibiting gross negligence and abandonment of a duty post before being properly relieved unless performing other usual and customary duties; (2) Policy 300.27 (pertaining to progressive discipline), specifically leaving a security post without authorization and gross negligence in performance of duty; and (3) Post Order #46, requiring control room officers to stay on post until properly relieved. See Certified Record (C.R.), Exhibit 4 - Disciplinary Action Form. See also Exhibit nos. 6 (CBA), 7 and 8 (Policy 300.27 with attachment A), and 10 (Post Order for Post #46).
In affirming the referee's decision, the Board specifically addressed Bates's testimony that she also left her post in order to check on inmates that could not be seen on her monitors, a duty described as necessary. The Board opined:
When the claimant passed her sergeant (after leaving the control room) and when filing for unemployment compensation, she said that she was concerned about fixing her hours, not that she was performing additional duties. Further, the claimant testified that the duties that she was allegedly performing should have been performed every thirty minutes, but had not been performed in over two hours. If the claimant were truly required to perform these rounds every thirty minutes, she should have performed them consistently, not when she needed to fix a problem with her hours. The sergeant credibly testified that the claimant was not required to perform these tasks and was prohibited from leaving her post without coverage or permission. Therefore, the Board concludes that the claimant left her post to correct her hours, not to perform additional work, and the claimant lacked good cause for leaving her post without coverage or permission.Board's order at 1. The Board also found that Bates's conduct was sufficiently egregious to warrant immediate discharge under Employer's policy. This appeal followed.
While the referee and Board refer to these rules only generally, we note that the CBA provided that gross negligence and abandoning a duty post before being properly relieved unless performing other usual and customary duties could subject an employee to immediate discharge. Moreover, Policy No. 300.27, which details Employer's progressive discipline policy, provides:
There are violations, however, that are grounds for immediate termination upon the first offense, such as theft. Depending on the severity of the violation and/or any prior history of Company policy violations, the Company may deviate from the [progressive disciplinary] process, resulting in immediate termination of the employee; this action may occur even in the absence of any prior history of disciplinary action. . . .Exhibit 7 at 1, 2. That policy also provided that where a violation of company policy occurs, managers are authorized to proceed immediately to final warning, suspension or termination. Id. at 3.
It is the intent of the Company to follow the progressive disciplinary action process in as many situations as possible. However, the integrity of the work environment is absolutely critical to [the Company's] successful fulfillment of [its] mission. . . .
On appeal, Bates first appears to challenge the Board's fact-finding. She specifically emphasizes her testimony that she left the control room to check on inmates and that this was a practice common among control room officers since staff reductions had occurred; she further avers that Employer was aware of this practice. She also asserts that her supervisor tacitly gave her permission to leave her post to address the overpayment of hours worked. There is no merit to these factual challenges.
It is well established that the Board is the ultimate fact-finder in unemployment compensation proceedings and has the authority to resolve issues of credibility and conflicts in evidence. Glenn v. Unemployment Comp. Bd. of Review, 928 A.2d 1169, 1171 n.1 (Pa. Cmwlth. 2007). The Board's findings are conclusive on appeal when supported by substantial evidence of record. Id. This court will not reweigh evidence or, as Bates advocates here, accept a version of the facts rejected by the Board. The credited evidence demonstrated that Bates's supervisor did not give Bates permission to leave her post and that it was not necessary for Bates to check on inmates. The Board specifically rejected Bates's testimony that she left her post primarily to perform necessary duties, finding instead that her sole purpose was to address the error in her hours. Accordingly, because the Board's findings are sufficiently supported, they are binding on appeal; we therefore evaluate her appellate arguments against these findings of fact.
Bates next contends that her conduct did not constitute willful misconduct because her actions did not demonstrate a disregard for Employer's interests. In this regard, Bates relies on her version of the facts, again emphasizing that she left her post to check on the welfare of the inmates, a usual and customary duty, which served to benefit Employer's interests. She further emphasizes that she was only gone from the control room for four minutes and her supervisor approved her absence from the control room. This contention lacks merit as well.
A deliberate violation of a work rule without good cause constitutes disqualifying willful misconduct. See generally Glenn, 928 A.2d at 1172. Employer terminated Bates for leaving the control room without permission or proper relief, conduct which Bates admitted violated Employer's rules and policies. Based upon the credited evidence, the Board found that Bates left the control room without permission to address a problem with her work hours, rejecting Bates's assertion that she left her post to perform additional duties required by Employer. Therefore, Bates failed to demonstrate that she had good cause to violate the known work rule. Consequently, the Board did not err in concluding that she engaged in willful misconduct.
While not so specifically argued, we reject any suggestion that the violation (four minute absence) was de minimis, thereby precluding a conclusion of willful misconduct. Not only does leaving a security post unmanned for any period of time presumably pose a potentially dangerous situation in a correctional institution, but this court has rejected the de minimis argument in cases involving the deliberate violation of a work rule. See generally Sheets v. Unemployment Comp. Bd. of Review, 708 A.2d 884, 885 (Pa. Cmwlth. 1998).
Bates also argues that she was improperly terminated under the terms of the CBA because her conduct did not constitute "abandonment" of her post or "gross negligence." Noting that the CBA does not define "abandonment," Bates advocates a commonly understood construction, contending that it requires a permanent relinquishment of the post. According to Bates, she never intended to permanently leave the post; rather, she intended to leave it temporarily and did in fact return, negating a finding of "abandonment." She also construes "gross negligence" as used in the CBA, to denote "an extreme departure from ordinary care." Bates argues that her conduct failed to meet this standard because she left her post to check on the inmates who were not visible on the control room cameras. Bates maintains that, since she neither abandoned her post nor acted in a grossly negligent manner, she could not be immediately terminated under the CBA and progressive discipline policy. We disagree.
In general, a progressive discipline policy must be followed in order for a claimant to be disqualified from benefits due to a discharge for willful misconduct. See PMA Reins. Corp. v. Unemployment Comp. Bd. of Review, 558 A.2d 623, 626 (Pa. Cmwlth. 1989). "The promulgation of specific rules puts employees on notice that the employer will not consider such conduct to be adverse to its interest until the requisite number of violations have been committed." Id.
After a review of the CBA, the progressive discipline policy and the post order for the control room, we conclude that Bates is construing the term "abandonment" too narrowly. The three aforementioned documents all make clear that an officer is prohibited from leaving a post without permission and/or a proper replacement. While only the CBA uses the term "abandonment," we conclude that in light of the aforesaid rules, the CBA can properly be construed to include a prohibition against giving up control of a post, whether temporarily or for the remainder of the shift. Indeed, that construction is consistent with the testimony of Employer's Human Resource Specialist, Patricia Bell. Ms. Bell testified that a first violation of the rule prohibiting an officer from leaving a post is a terminable offense. She further stated: "It is [a terminable offense] because leaving her post without it being manned by someone else, that's neglect and anything can happen at that time." See Certified Record, Notes of Testimony (N.T.) at 5 (Hearing on May 17, 2012). Consequently, we conclude that under the terms of the CBA and progressive discipline policy, Bates had sufficient notice that leaving her post unattended without permission could result in an immediate discharge.
In light of this conclusion, we need not address whether her conduct also amounted to "gross negligence" under the terms of the CBA. See Glenn v. Unemployment Comp. Bd. of Review, 928 A.2d 1169, 1172 (Pa. Cmwlth. 2007) (stating that, "a claimant who has been discharged for multiple reasons is disqualified from receiving benefits even if only one of those reasons amounts to willful misconduct").
Finally, Bates argues that Employer failed to meet its burden of establishing the existence of the work rules at issue because Employer's witness was unable to properly authenticate the exhibit containing the rules. Disregarding that this contention has been waived because no objection was raised at the hearing, we conclude that the argument is meritless. Employer's witness, Ms. Bell, could not identify the signature appearing on the Disciplinary Action Form. Ms. Bell did identify the rules and policies violated, however. Ms. Bell also reiterated in her testimony that Employer's rules prohibit an officer from leaving a post without "coverage." N.T. at 6. Moreover, Bates did not and does not dispute the existence of the rule, only whether she had good cause to violate it.
The Disciplinary Action Form regarding Bates's conduct contains an incident date and location, a brief description of the conduct involved, the policies violated and the disciplinary action imposed. The form appears to have been completed by John McCarthy, who is identified as Bates's manager, but the signature is illegible. --------
Accordingly, based upon the foregoing, we affirm.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge ORDER
AND NOW, this 25th day of June, 2013, the order of the Unemployment Compensation Board of Review in the above-captioned matter is AFFIRMED.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge