Opinion
No. 1002 C.D. 2011
02-02-2012
Craig Gouker Roofing, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE LEAVITT
Craig Gouker Roofing (Employer) petitions for review of an adjudication of the Unemployment Compensation Board of Review (Board) granting Eugene Nehila (Claimant) benefits. In doing so, the Board affirmed the Referee's determination that Claimant did not commit willful misconduct, which would render him ineligible under Section 402(e) of the Unemployment Compensation Law (Law). Employer contends that Claimant's failure to return its telephone calls was willful and he did not establish good cause for this misconduct. Concluding that the findings of fact and credibility are inadequate to conduct appellate review, we vacate and remand.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e). It provides, in relevant part, that "[a]n employe shall be ineligible for compensation for any week ... [i]n which his unemployment is due to his discharge or temporary suspension from work for willful misconduct connected with his work." 43 P.S. § 802(e).
Claimant worked full-time as a laborer at Employer's roofing business from 2007 through December 10, 2010, with a wage of $15 per hour. When Employer's business slows down in the winter, employees file for unemployment benefits. Claimant did so, but Employer responded to Claimant's application with the assertion that he had been discharged for willful misconduct. On February 10, 2011, the UC Service Center found that Claimant's willful misconduct rendered him ineligible for benefits and issued a fault overpayment for benefits received for the weeks December 18, 2010, through January 29, 2011.
Claimant appealed, and a hearing was held before a Referee. At the hearing, Craig Gouker, the company owner, presented testimony. He explained that every winter he encounters weather issues that prevent employees from working because of safety concerns. So, he "[s]tart[s] them on unemployment." Reproduced Record at 53a (R.R. ___). When the weather improves, he calls them back to work.
In early December 2010, Gouker told his employees to apply for unemployment benefits, and Gouker went on vacation. On December 17, 2010, while still on vacation, Gouker tried to contact Claimant to return to work. The foreman telephoned Claimant twice, leaving a message that Claimant was to report to work the following day when the weather was improved. When Claimant did not return the call, the foreman notified Gouker, who then tried calling Claimant two or three times. Claimant did not respond.
Gouker stated that the company had a policy that during furloughs, employees were to expect to be contacted when work was available. He stated that employees were informed of this policy when hired and "[p]ractically on a weekly basis" thereafter. R.R. 60a. He testified that because Claimant has worked there for "four years ... he knows the game. He knows how it happens." R.R. 61a. Gouker stated that there was an unwritten rule to "call off" if you were going to be unable to respond to calls. Claimant did not notify Employer of his unavailability.
Gouker admitted that he never officially informed Claimant he had been discharged. Gouker told one of his employees that he had fired Claimant, who so advised Claimant's cousin; the cousin contacted Claimant. Gouker testified that he did not feel that he had to contact Claimant after "all of the stuff [he] put up with." R.R. 61a.
Gouker provided the Referee with a list of complaints regarding Claimant's past behavior. The list included claims that Claimant admitted using drugs, was caught stealing gasoline on two occasions, damaged two company trucks, and was often tardy. These incidents were alleged to have occurred over the course of several years. Gouker did not claim Claimant was ever disciplined or warned about these alleged incidents of misconduct.
Claimant testified. He stated that he talked with Gouker two days before Gouker left for vacation. Gouker told him "we are not going to be working the next week." R.R. 61a. Claimant's grandmother had recently died and he traveled to Pymatuning, Pennsylvania to empty her mobile home. He left on December 15th and returned on December 23rd.
Claimant explained that he took his cell phone with him to Pymatuning. However, because there is no cell service there, he turned off his cell phone. When he returned home on December 23rd, he checked his voice mail and responded to Gouker's message.
The Referee issued two decisions. The first decision (Referee Decision I) addressed whether Claimant was able and available for work for the claim weeks ending December 18th and December 25th. The Referee's reasoning, in full, stated as follows:
At the hearing, the Referee explained that there were two separate claims at issue because Claimant "had a claim that was active ... and then qualified for a new claim on December 19, 2010." R.R. 50a. Thus, the December 2010 dates were considered part of a prior, but still active, claim and the January 2011 dates attributed to the new claim.
The claimant left town for a week to tend to a family matter. As such, the claimant's failure to return the employer's telephone calls may have been justified due to a lack of available cell service. The claimant's failure to return the employer's telephone calls clearly demonstrates that he removed himself from the work force from December 15, 2010 through and including December 23, 2010. Therefore, the Referee concludes that the claimant was not able and available for suitable work for the claim weeks ending December 18, 2010 and December 25, 2010 as the claimant was out of the area for the majority of each of these weeks.Referee Decision I at 2 (emphasis in original). Accordingly, the Referee affirmed the UC Service Center's issuance of a fault overpayment for those two weeks.
The second decision (Referee Decision II) addressed the issue of willful misconduct and the remaining claim weeks. The Referee found, as fact, that Employer's work was restricted by winter weather conditions but that Employer had work available on December 17th. Claimant was contacted on December 17th and 18th to return to work but did not respond. No other relevant factual findings were made, nor did the Referee make any credibility determinations.
The Referee then concluded as follows:
[T]he Referee is unwilling to impute willful misconduct to the claimant's failure to return the employer's phone calls because the claimant's failure to return telephone calls may have been justified due to a lack of available cell service. It is also noted that the employer never conveyed to the claimant that his employment had been terminated. ... While the claimant did not consistently act in a manner which comports with the employer's expectations, there is not sufficient, competent evidence in the record regarding the final incident that prompted the separation from employment to cause this Referee to conclude that the claimant committed any action which can be construed as willful misconduct....Referee Decision II at 2. Accordingly, the Referee reversed the UC Service Center's determination about willful misconduct and held that Claimant was eligible for benefits received in January 2011.
Employer appealed Referee Decision II to the Board, arguing that it had established Claimant's willful misconduct. The Board affirmed without discussion, and Employer petitioned for this Court's review.
Our review is limited to determining whether constitutional rights were violated, whether an error of law has been committed, or whether necessary findings of fact are supported by substantial evidence. Roberts v. Unemployment Compensation Board of Review, 977 A.2d 12, 16 n.2 (Pa. Cmwlth. 2009).
Employer raises four issues in its appeal to this Court. First, Employer claims the Referee misapplied the burden of proof required in willful misconduct cases. Second, it contends the Referee erred in disregarding competent evidence of record. Third, it argues Claimant did not meet his burden of establishing good cause for his willful misconduct. Fourth, it contends the Board erred in awarding benefits when the Referee found Claimant removed himself from the workforce from December 15th through the 23rd.
We begin with a review of the law on willful misconduct. Although not defined in the Law, the courts have established that it means the following:
(1) an act of wanton or willful disregard of the employer's interest;Altemus v. Unemployment Compensation Board of Review, 681 A.2d 866, 869 (Pa. Cmwlth. 1996). It is the employer's burden to establish that a claimant's conduct constituted willful misconduct. Conemaugh Memorial Medical Center v. Unemployment Compensation Board of Review, 814 A.2d 1286, 1288 (Pa. Cmwlth. 2003). Where willful misconduct is based upon the violation of a work rule, the employer must establish the existence of the rule, its reasonableness, and that the employee was aware of the rule. Bishop Carroll High School v. Unemployment Compensation Board of Review, 557 A.2d 1141, 1143 (Pa. Cmwlth. 1989). Once employer meets this burden, the burden shifts to the claimant to prove that the rule was unreasonable or that he had good cause for violating the rule. Gillins v. Unemployment Compensation Board of Review, 534 Pa. 590, 601 n.3, 633 A.2d 1150, 1156 n.3 (1993).
(2) a deliberate violation of the employer's rules;
(3) a disregard of standards of behavior which the employer has a right to expect of an employee; [or]
(4) negligence indicating an intentional disregard of the employer's interest or of the employee's duties and obligations to the employer.
In its first allegation of error, Employer argues that the Referee did not apply the above-stated standards for willful misconduct. Specifically, Employer complains that the Referee found that Claimant's conduct did not meet Employer's expectations but then held, inconsistently, that the evidence did not support a finding of willful misconduct. Further, in finding that Claimant's failure to return telephone calls may have been justified by a lack of cell phone service, the Referee implicitly determined that Employer established a violation of a work rule. Otherwise, there would have been no reason for the Referee to consider whether the lack of cell phone service gave Claimant good cause. In any case, because the Referee made no definitive factual findings about the lack of cell phone service, good cause was not established.
In response, the Board argues that the Referee credited Claimant's testimony that he was unable to respond to Employer's calls because he did not have cellular service. Further, because Employer told Claimant that he had the week ending December 18th off from work, it was reasonable for Claimant to believe Employer would not be contacting him. The problem with the Board's argument is that the Referee did not make any factual findings about whether Employer informed Claimant that there was no work available for the week ending December 18th.
Employer alleged a work rule violation. Gouker testified that the work rule required Claimant to report if he would be out of town and unavailable to work. Gouker also testified that Claimant was aware of the rule. The Referee made no factual findings about this work rule, i.e., whether it existed or whether it was violated. Further, the Referee made no factual findings about whether Claimant had been advised that work would not be available the week of his absence. If so, this could establish good cause for the violation of the work rule that employees stay in contact with Employer during layoffs. The Referee made no express credibility determinations.
"Matters of credibility and evidentiary weight are within the province of the Board...." BK Foods, Inc. v. Unemployment Compensation Board of Review, 547 A.2d 873, 875 (Pa. Cmwlth. 1988). Thus, it is charged with the responsibility "to make findings which are '... necessary to resolve the issues raised by the evidence and which are relevant to a decision.'" Harris v. Unemployment Compensation Board of Review, 473 A.2d 251, 252 (Pa. Cmwlth. 1984) (emphasis omitted) (quoting Cicco v. Unemployment Compensation Board of Review, 432 A.2d 1162, 1164 (Pa. Cmwlth. 1981)). "[W]here [the] Board's findings are inadequate this Court cannot perform appellate review and must remand for additional findings." Dorn v. Unemployment Compensation Board of Review, 866 A.2d 497, 502 (Pa. Cmwlth. 2005) (citing Stankiewicz v. Unemployment Compensation Board of Review, 529 A.2d 614 (Pa. Cmwlth. 1987)).
The Board affirmed and adopted Referee Decision II without addressing the lacunae in the Referee's factual findings and credibility determinations. Accordingly, we remand for these missing factual findings on whether a work rule was violated and, if so, whether Claimant established good cause for his conduct.
Accordingly, the order of the Board is vacated and remanded to the Board for proceedings consistent with this opinion.
Because we vacate and remand, we will not address Employer's remaining issues. --------
/s/_________
MARY HANNAH LEAVITT, Judge ORDER
AND NOW, this 2nd day of February, 2012, the order of the Unemployment Compensation Board of Review, dated May 9, 2011, in the above-captioned matter is hereby VACATED and REMANDED for proceedings consistent with this opinion.
Jurisdiction relinquished.
/s/_________
MARY HANNAH LEAVITT, Judge