Summary
In O'Keefe v. Commonwealth, 18 Pa. Comwlth. 151, 156, 333 A.2d 815, 818 (1975), the issue was whether a claimant who admitted taking stale pastries from his employer on several occasions had committed theft or "willful misconduct" and was ineligible for unemployment compensation.
Summary of this case from Starr v. Indus. Claim App. offOpinion
Argued February 7, 1975
March 21, 1975.
Unemployment compensation — Discharge for wilful misconduct — Unemployment Compensation Law, Act 1936, December 5, P.L.(1937) 2897 — Burden of proof — Question of law — Scope of appellate review — Error of law — Findings of fact — Substantial evidence — Words and phrases — Wilful misconduct — Absence of notice of rule — Regular, obvious activity — Admission — Offer to make restitution — Misapprehension of company policy.
1. An employe discharged for wilful misconduct is ineligible for benefits under the Unemployment Compensation Law, Act 1936, December 5, P.L. (1937) 2897. [153-4]
2. In an unemployment compensation case the burden is upon the employer to prove wilful misconduct if such is asserted to be the cause of the employe's discharge. [154]
3. In an unemployment compensation case whether a particular set of facts constitutes wilful misconduct is a question of law, and on appeal the Commonwealth Court of Pennsylvania must determine whether an error of law was committed or a necessary finding of fact was unsupported by substantial evidence. [154]
4. Wilful misconduct is the wanton and wilful disregard of the employer's interest, the deliberate violation of rules, the disregard of standards of behavior which an employer can rightfully expect or negligence such as to manifest culpability, wrongful intent, evil design or intentional and substantial disregard of the employer's interests or the employe's duties and obligations. [154]
5. When no employes nor their immediate supervisor were aware that particular habitual and unconcealed conduct of the employes was wrongful or in violation of any rules of the employer, such conduct cannot constitute wilful misconduct so as to preclude receipt of unemployment compensation benefits following discharge of an employe as a result of such conduct. [155-6]
6. Under the facts of this case an alleged admission by a bakery employe, made at the request of security personnel when the employe was fearful of possible prosecution, to the effect that he had eaten stale pastries knowing it was wrong and that he would pay for the items eaten, does not constitute substantial evidence of wilful misconduct under the circumstances, considering that such was the only evidence contradicting evidence that no employe knew such conduct was prohibited. [156-7]
7. Substantial evidence is evidence a reasonable mind might accept as adequate to support a conclusion. [156-7]
8. Actions resulting from an innocent misapprehension of company policy do not constitute wilful misconduct. [157]
Argued February 7, 1975, before Judges KRAMER, ROGERS and BLATT, sitting as a panel of three.
Appeal, No. 580 C.D. 1974, from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Thomas J. O'Keefe, No. B-121264.
Application to Bureau of Employment Security for unemployment compensation benefits. Application denied. Applicant appealed to the Unemployment Compensation Board of Review. Referee allowed benefits. Order reversed and benefits denied by Board. Applicant appealed to the Commonwealth Court of Pennsylvania. Held: Reversed.
John D. McBride, with him Panner, Holland and Autenreith, for appellant.
Charles G. Hasson, Assistant Attorney General, with him Sydney Reuben, Assistant Attorney General, and Robert P. Kane, Attorney General, for appellee.
This is an appeal by Thomas J. O'Keefe (O'Keefe) from an order of the Unemployment Compensation Board of Review (Board), dated April 9, 1974. The Board's order reversed an order of an unemployment compensation referee dated January 29, 1974, which had awarded benefits to O'Keefe.
O'Keefe was employed as an "unpacker" at a branch of Kaufmann's, a large Pittsburgh-based department store. He had held this job from October 1, 1968 until November 20, 1973, the date of his discharge. O'Keefe frankly admits that for several months prior to his discharge he had been in the habit of removing small, stale pastry items from a hamper located near his work station. He ate these items as a supplement to his lunch. These pastries had been offered for sale in the branch store, reduced in price after one day, and thereafter stored in the hamper prior to being shipped to Pittsburgh for some incidental use. It is uncontroverted in the record that O'Keefe only took stale pastries which had been removed from the sales area.
The record indicates that these stale pasteries were "ground up" for use in producing new baked goods. The Board's brief, however, states that the pastries were used as animal feed. Unchallenged testimony in the record reveals that neither O'Keefe nor his immediate supervisor know of any further use for the pastry items.
On the morning of November 20, 1973, O'Keefe took two pastries out of the hamper. Afterwards, at approximately 11:00 A.M., O'Keefe's immediate supervisor informed him that he was not permitted to take the pastries and that he should not eat any more of them. At approximately 1:30 P.M. on that same date O'Keefe was discharged for eating the stale pastries.
The Board denied benefits on the basis of section 402 (e) of the Unemployment Compensation Law (Law), Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P. S. § 802 (e), which provides, in relevant part, that 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. . . ."
The burden of proving willful misconduct is on the employer. MacFarlane v. Commonwealth of Pennsylvania, Unemployment Compensation Board of Review, 12 Pa. Commw. 550, 554, 317 A.2d 324, 326 (1974) and Kentucky Fried Chicken of Altoona, Inc. v. Unemployment Compensation Board of Review, 10 Pa. Commw. 90, 98, 309 A.2d 165, 169 (1973). Whether the facts, as found below, constitute willful misconduct is a question of law. Longacre, Inc. v. Commonwealth of Pennsylvania, Unemployment Compensation Board of Review, 12 Pa. Commw. 176, 179, 316 A.2d 110, 111 (1974). Our power to review for errors of law is clear, as is our duty to determine whether all necessary findings are supported by substantial evidence. Stalc v. Commonwealth of Pennsylvania, Unemployment Compensation Board of Review, 13 Pa. Commw. 131 134, 318 A.2d 398, 400 (1974).
We have interpreted section 402(e) of the Law as requiring (1) the wanton and willful disregard of the employer's interest; (2) the deliberate violation of rules; (3) the disregard of standards of behavior which an employer can rightfully expect from his employe; or, (4) negligence which manifests culpability, wrongful intent, evil design, or intentional and substantial disregard for the employer's interests or the employe's duties and obligations. Kentucky Fried Chicken, supra. This definition indicates that before the actions of an employe can constitute willful misconduct, the employe must display a serious disregard of his responsibilities to his employer, in a manner that is in some real sense detrimental to his employer's interests. The question is primarily a matter of degree, and the inquiry must be framed in terms of whether the employe's acts rise to the level of willful misconduct. Loder v. Unemployment Compensation Board of Review, 6 Pa. Commw. 484, 296 A.2d 297 (1972).
O'Keefe's immediate supervisor testified that he had observed O'Keefe and other employes taking the stale baked goods on many occasions, but that he had never warned any employe that such action was a violation of company policy. The supervisor explained this inaction by stating that he did not realize that there was anything wrong with taking the stale pastries until the day of O'Keefe's discharge, when his superior informed him of the policy. A reading of the record reveals that O'Keefe made no attempt to conceal his actions, since both he, the other employes, and their immediate supervisor believed that the stale pastries were valueless waste material.
The record does not indicate that any other employes were discharged for eating stale pastries.
Comparing this factual situation with the definition of willful misconduct noted above, we must conclude that O'Keefe's actions do not rise to the level of willful misconduct.
It is difficult to see how O'Keefe's conduct can amount to a willful disregard of his employer's interest, a deliberate violation of rules, or negligence which manifests wrongful intent or evil design, when O'Keefe's supervisor observed the suspect action over a period of time, said nothing, and, in fact, did not know himself that any company policy was being violated.
The only remaining basis for concluding that O'Keefe's actions constituted willful misconduct would require a finding that eating the stale pastries amounted to "the disregard of standards of behavior which an employer can rightfully expect from his employe." Kentucky Fried Chicken, supra. Once again we point out that willful misconduct is a matter of degree, and, while we do not condone theft by an employe, we simply cannot agree with the Board that this case shows any improper motive on the part of O'Keefe. In the peculiar circumstances of this case, we can find no indication of any wrongful conduct on O'Keefe's part. Indeed, it is difficult for us to see how O'Keefe can be said to have disregarded a "standard of behavior" when the record shows, without contradiction, that none of the other employes, or the immediate representative of management, had the slightest idea that anything was wrong with eating a piece of stale, apparently unsalable, pastry.
We note that O'Keefe, at the instigation of Kaufmann's security personnel, signed a waiver of his rights under Miranda v. Arizona, 384 U.S. 436 (1966), and a statement in which he "admitted" that he knew eating the pastries was wrong. This statement was signed by O'Keefe but was written in the handwriting of another person. It included an offer to make restitution in the amount of $50 (to cover all of the pastries consumed by O'Keefe over a period of several months), and, in fact, O'Keefe did pay Kaufmann's $50. From this, the Board found that O'Keefe had been "stealing baked goods" from his employer. The entire balance of the record leaves us with no doubt that O'Keefe was not "stealing" as we understand the meaning of that term, and the statement containing the "admission" (which is the only evidence indicating O'Keefe knew his actions were disapproved of by his employer) does not constitute the substantial evidence necessary to support the finding of the Board.
O'Keefe testified that he signed the statement at the request of security personnel because he was upset over the incident and feared a criminal prosecution at Kaufmann's instigation. The procedure of this large department store security force used in this case appears to be similar to the procedure followed in shoplifting cases. The portion of the signed statement which purports to acknowledge that eating the pastries was "wrong" is patently incredible in light of the fact that the management's own representative did not see anything wrong with the practice and had, in fact, knowingly permitted it to continue. Substantial evidence is that evidence which a reasonable mind might accept as adequate to support the finding of the Board. Tritex Sportswear, Inc. v. Commonwealth of Pennsylvania, Unemployment Compensation Board of Review, 12 Pa. Commw. 335, 315 A.2d 322 (1974). Considering the circumstances under which the "admission" was made, the nature of the document itself, and the fact that it is the only evidence indicating that O'Keefe was aware of any relevant company policy, we cannot conclude that, standing alone, it provides adequate support for the Board's finding.
The Board cites Kostik v. Commonwealth of Pennsylvania, Unemployment Compensation Board of Review, 12 Pa. Commw. 32, 315 A.2d 308 (1974) as authority for the proposition that even one isolated instance of theft is sufficient to constitute willful misconduct. We do not disagree with this view of Kostik, but we note that in Kostik, and in contrast to the instant case, there was considerable evidence in the record to support the necessary finding of fact concerning the theft. In Kostik the employe had also signed a written "admission" (written in her own hand), but there was independent corroborating testimony to indicate that a theft had been attempted. Also, in Kostik the employe was allegedly engaged in tampering with price stickers on pieces of meat, an activity which the employe could not reasonably deny was an intentional violation of her employer's trust. The consumption of stale pastry items, in the circumstances of the instant case, presents a totally different situation, in which an innocent misapprehension of company policy (or "non-policy") is a clear possibility.
Our holdings in this case are, of course, limited to the facts we have before us, and we do not imply that we approve of theft by employes. Our careful review of the record, however, leads us to conclude that O'Keefe's conduct simply does not rise to the level required to mandate a denial of benefits. Accordingly, we
ORDER
AND NOW, this 21st day of March, 1975, it is hereby ordered that the order of the Unemployment Compensation Board of Review, dated April 9, 1974, denying unemployment compensation benefits to Thomas J. O'Keefe, is reversed.