Opinion
Civil Action No. 10A-01-001-JOH.
Submitted: June 14, 2010.
Decided: September 22, 2010.
Upon Appeal from a Decision of the Unemployment Insurance Appeal Board — AFFIRMED .
James J. Sullivan, Esquire, of Buchanan Ingersoll Rooney, PC, Wilmington, Delaware, Attorney for Murphy Marine Services, Inc.
Phillip G. Johnson, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the Unemployment Insurance Appeal Board.
Clifton Brittingham, Wilmington, Delaware, Pro Se.
MEMORANDUM OPINION
Murphy Marine Services, Inc., appeals the decision of the Unemployment Insurance Appeal Board granting benefits to Clifton Brittingham. This dispute arose out of the new security restrictions placed on the Port of Wilmington arising from post "9/11" federal legislation. Basically, this legislation, as applied here, required people needing access to restricted areas of the Port to have a special identity card. By the deadline for access to such areas, Brittingham did not have that card.
Just prior to the effective date for the need to have the ID card, Brittingham quit his job saying he did not have the card, and the next day filed for unemployment compensation. Because the Board found Brittingham followed all of the procedures for applying for the special card, it found he had not been terminated for just cause.
While the Board committed an error of law in the process of reaching that conclusion, its ultimate judgment is supported by substantial evidence and its basic decision is free from legal error. Its decision is AFFIRMED.
Factual Background
As a result of the "9/11" attacks and the federal government's efforts to improve homeland security, Congress passed various laws to achieve that goal. One is the Maritime Transportation Security Act of 2002 ("MTSA") which requires all dockworkers who need access to restricted or secured port facilities to possess a biometric security card, known as the Transportation Worker Identification Credential ("TWIC") card. The Department of Homeland security ("DHS") published notice on October 9, 2007, that the initial enrollment for the Wilmington Port would start October 16, 2007. Brittingham and others working at the Port apparently knew as of sometime in the Fall of 2007 that the TWIC card application process was open. In August 2008, DHS said that the Port had to be in compliance as of December 30, 2008, meaning those who were to have access to restricted areas needed to have TWIC cards.
See 49 C.F.R. § 1572.
72 Fed. Reg. 57342 (Oct. 9, 2007).
Prior to June 2, 2009, an exception existed as several areas in the Port were not yet classified as restricted. However, employees going into those particular areas were required to be escorted by employees who had TWIC cards. The unrebutted evidence shows that Murphy Marine provided such escorts into these unrestricted areas.
Apparently, Murphy Marine informed its employees in July 2008 that they should apply for TWIC cards as they would soon be required. Despite ample notice, Brittingham chose not to apply until December 12, 2008, approximately two weeks prior to the deadline that limited access to restricted areas to employees who had TWIC cards.
Brittingham testified he relied upon his union's representations that the deadline for TWIC applications was December 30, 2008. Further, the union was apparently running a "Pardons Project" to assist its members, like Brittingham, whose criminal records may inhibit their ability to get TWIC cards. Brittingham's initial TWIC application was denied, apparently without prejudice. In July 2009, he was told he was eligible for a TWIC card.
Brittingham last reported to work on May 29, 2009. He subsequently applied for unemployment benefits effective May 31, 2009 stating, "I can't work down to the port because I'm waiting for my TWIC."
Mr. Brittingham's last day was the Thursday before the Monday on which the entire port was reclassified as restricted.
Department of Labor Finding of Facts, Brittingham v. Murphy Marine (May 31, 2009).
Brittingham's claim for unemployment benefits was denied by the Appeals Referee who stated:
The issue in this case is whether the claimant is considered to have voluntarily left his employment. The claimant had been notified of the requirement that employees working at the Port of Wilmington were required to be in the possession of a [TWIC] Card as mandated by [DHS]. . . . It is concluded that the claimant is considered to have voluntarily left his employment because of his inability to obtain the required TWIC Card to enter the Port facilities so that he could perform the duties of his job with his employer. There had been work available for the claimant but because of his failure to obtain the necessary TWIC Card, he was unable to perform the work available for him.
Department of Labor Referee decision, Brittingham v. Murphy Marine (July 10, 2009).
Brittingham appealed the Appeals Referee's decision to the Board. Present at the hearing were Brittingham, Ronald Harris, a union official, and Delaware State Representative James Johnson. Carol Ferguson represented Murphy Marine.
Their testimony from the hearing before the appeals Board can be summarized as follows: Harris testified that the union advised Brittingham to delay his application for a TWIC card until the Pardons Project investigated the disqualifying charges. Representative Johnson testified that he spoke to an unnamed individual from Murphy Marine who said "they would not protest the fact that the employee, if it wasn't any other extenuating circumstances; if he did everything he could to try to secure his TWIC card that they would not protest him getting unemployment." Ferguson explained that compliance with the TWIC card program meant that employees must possess a TWIC card by December 30, 2008 to access restricted areas.
Transcript of Appeal Bd. Hearing at 12, Brittingham v. Murphy Marine (September 16, 2009). The individual who allegedly made this statement was never identified. It is also unknown if the individual possessed the authority to make statements regarding company policy. Ferguson's presence at the hearing seems to cast some doubt on Murphy Marine's alleged position. Further, while the Board decision does not mention that it relied upon this testimony, it was not admissible evidence (no disrespect to Rep. Johnson), even with less restrictive evidentiary rules, and presumably the Board did not rely on it in any way.
The Board found that Brittingham had relied upon information from both his union and Murphy Marine, and he believed he had until December 30, 2008 to apply for a TWIC card. Brittingham applied on December 12th. The Board further found that Murphy Marine "made allowances" for employees who may not receive a card in time. As such, the Board ruled that Brittingham did not act willfully or wantonly against Murphy Marine's interest. Holding that "[Murphy Marine] did not have just cause to terminate [Mr. Brittingham]," the Board reversed the Appeal Referee's decision.
Decision of the Unemployment Ins. Appeal Bd. at 3, Brittingham v. Murphy Marine (December 15, 2009).
Parties' Contentions
Brittingham has not filed a brief with this Court. See also, "Final Delinquent Brief Notice," May 10, 2010.
Murphy Marine further contends that the Board should not have departed from the voluntary quit standard applied by the Appeals Referee. It asserts that the record supports a voluntary quit standard because Brittingham was responsible for the delay in his TWIC card application. Murphy Marine speculates that if he had applied earlier, he would have received a TWIC card in sufficient time to continue working.
If the Board properly used the termination standard, it argues that termination was not supported by substantial evidence. It claims that because Brittingham failed to comply with the employment requirements, his termination from Murphy Marine is justified.
The Board took no position as to the merits of this appeal.
Letter from Philip G. Johnson, Deputy Attorney General (March 31, 2010).
Standard of Review
This Court's role in an appeal from a decision of the Board is to ascertain whether its conclusions are supported by substantial evidence and free from legal error. It is not the role of the Court to weigh evidence, make factual findings, or make a creditability determination. Absent an abuse of discretion, the decision of the agency must be affirmed. "In any judicial proceeding under this section, the findings of the Board as to the facts, if supported by evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the Court shall be confined to questions of law." The Court will consider the record in the light most favorable to the party prevailing below when reviewing the record for substantial evidence.Questions of law are reviewed de novo. However, if the Board committed legal error but was correct in its ultimate conclusion, the error is harmless. Furthermore, "the Superior Court may provide legal reasoning different from that of the Board, so long as the Superior Court does not fall `into the error of weighing the evidence, determining questions of credibility and making factual findings and conclusions.'"
Munyan, 909 A.2d at 136.
Bd. of Educ. of Smyrna Sch. Dist. v. DiNunzio, 602 A.2d 85, 93 (Del. Super. 1990).
Chrysler Corp. v. Alston, 702 A.2d 925, 1997 WL 597120, at *2 (Del. 1997) (citations omitted).
Discussion
Murphy Marine raises two issues on appeal. First, it claims that the Board erred in relying on the testimony of witnesses to establish the deadline of implementation of the TWIC program. Second, it asserts that the Board erred in applying a "just cause" termination standard, rather than the voluntary quit standard applied by the Appeals Referee. Regardless of either claim for error, if the Board's decision is supported by substantial evidence, it will stand.The Board Erred In Receiving Testimony Regarding The Law
The evidence heard by the Board regarding the legal requirements of the TWIC program was received in error. A witness cannot testify as to the requirements of law as Harris did; that role is left to a judge or presiding body. The deadline for employees to obtain a TWIC card and enter restricted areas without an escort was December 30, 2008. This was not the deadline for submitting an application for a TWIC card. The Board erred as a matter of law in holding the deadline was December 30, 2008 for submitting an application for a TWIC card. Despite this error of law, the Court's analysis does not end here. If the Board's decision is supported by substantial evidence that can be attributed to another legal proposition, the Board's decision must stand.
Itek Corp. v. Chicago Aerial Industries, Inc., 274 A.2d 141, 143 (Del. 1971).
73 Fed. Reg. 50721; 33 C.F.R. 105.115(e).
Chrysler Corp., 702 A.2d at 925.
The Board's Decision Was Supported By Substantial Evidence
A claimant is disqualified from receiving unemployment insurance benefits if terminated for "just cause" in connection with his work. "Just cause" is defined as "a willful or wanton act in violation of either the employer's interest, or of the employee's duties, or of the employee's expected standard of conduct." The burden is on the employer to show that an employee was terminated for "just cause," by showing that the "employee was conscious of his conduct and recklessly indifferent of its consequences." On the contrary, if an employee claimant has quit work voluntarily, the burden is on the claimant to show good cause. If the claimant can show "good cause attributable to such work" for leaving the job, the claimant is not disqualified from receiving unemployment insurance benefits.The Board applied a termination standard but held that the claimant was terminated without "just cause." Murphy Marine argues that the Board did not have reason to depart from the voluntary quit standard applied by the Appeals Referee. In this review, the Court must determine whether the Board's finding that Brittingham was terminated without just cause was supported by substantial evidence.
The Board reached its conclusion based on the following: two witnesses who stated that employees had to apply for a TWIC card prior to December 30, but that the card need not be possessed by that date; and testimony that Murphy Marine provided escorts for employees into unrestricted areas while awaiting their TWIC cards. In its decision, the Board stated that "the Claimant followed the instructions of his Employer and heeded the advice his Union with respect to his application[.]"
Decision of Appeal Bd. at 3.
As the Board acknowledged, "[i]t is black-letter law that the suspension of a license needed by an employee to carry out the duties of his job is just cause for termination." In Bishop v. Trexler, the Court held that Bishop was terminated for just cause when he operated a tow truck without his driver's license. Bishop alleged that Trexler authorized him to drive the truck even though he did not possess a driver's license; however Trexler denied this allegation. Ultimately, the case was a question of fact as to whether Trexler made an exception for Bishop's lack of a driver's license. The Court held that insufficient evidence existed to suggest an exception was made for Trexler. Therefore, he was properly terminated for lacking a driver's license.
Decision of Appeal Bd. at 3, citing Bishop v. Trexler, 2005 WL 272936 (Del. Super. 2005). It is regrettable that the union's "misunderstanding" of the significant federal deadlines and incorrect information passed along to Brittingham helped create this litigation.
Bishop, 2005 WL 272936 at *1.
Id. at *2.
Id.
An employee can be terminated for just cause if that employee lacks a certification required to complete the job. Specifically, as to the TWIC regulation, any employee attempting to enter a restricted area without a TWIC card could be terminated. However, employees who lacked a TWIC card after December 30th but before the June 2, 2009, deadline were not terminated. An exception under the TWIC regulation allowed for employees who have applied for but are still awaiting a TWIC card to access restricted areas as long as an employee holding a TWIC card escorts them. Although an "inconvenience," Murphy Marine chose to utilize the exception, admitting that "the application process could be lengthy at times. . . [and it] made allowances for its employees while they awaited a final determination on their TWIC applications."
Bishop, 2005 WL 272936 at *2.
Decision of Appeal Bd. at 3.
The Board found that Murphy Marine provided escorts for employees until June 2009, when the entire Port was classified as restricted. This allowance made by Murphy Marine negated the necessity of the TWIC card for employment. Brittingham would have been in violation of the TWIC program if he entered a restricted area without an escort, but no evidence that he attempted to do so exists on the record. The exception became inoperative by operation of federal law on June 2, 2009. The entire Port became a restricted area and anyone entering it needed a TWIC card. The Board relied on this change in its decision. According to the Board, "Murphy Marine had made allowances. . . ." The language " had" implies something that was given to Brittingham and then later taken away. The Board held that the expiration of the exception, not the lack of a TWIC card, caused Brittingham's termination.
Emphasis added.
Once the entire port became a restricted facility, Murphy Marine determined that they could no longer provide escorts. According to Brittingham, once the entire Port became secure, "[Murphy Marine] all of a sudden . . . stopped . . . once they stopped escorting us in, we [sic] couldn't come to work." No evidence in the record suggests notice given to employees about the expiration of the exception.
On appeal, Murphy Marine discusses the difficulty in providing escorts when the entire port was classified restricted. This additional evidence was not presented to the Board, and will not be considered by this Court on appeal.
Transcript of Hearing at 54.
The Board's ruling is supported by substantial evidence that Brittingham was terminated without just cause, regardless of the error of law it made. These factual findings are the basis for the Board's decision that Brittingham did not act willfully or wantonly against Murphy Marine's interest. In that regard, too, the Board applied the appropriate termination standard. Murphy Marine did not have just cause in terminating Brittingham, and the Board's decision will stand.
Conclusion
For the reasons stated herein, the decision of the Unemployment Compensation Appeal Board is AFFIRMED.
IT IS SO ORDERED.