Summary
In Tongel, we held that a dispatcher who was discharged for violating the employer's policy restricting the admission of police officers to the control center to police officers who were on official business was not ineligible for benefits under section 402(e) because she was never informed of the employer's rule.
Summary of this case from Phillips v. Unemployment Comp. Bd. of ReviewOpinion
December 17, 1985.
Unemployment compensation — Wilful misconduct — Burden of proof — Scope of appellate review — Error of law — Findings of fact — Substantial evidence — Violation of rules — Notice.
1. In an unemployment compensation case where the employer with the burden of proving that the discharge of the claimant was for wilful misconduct prevailed below, review by the Commonwealth Court of Pennsylvania is to determine whether an error of law was committed or necessary findings of fact were unsupported by substantial evidence. [526]
2. An employer seeking to establish that an unemployment compensation claimant was guilty of wilful misconduct in violating a rule of the employer must prove the existence of the rule and the intentional or deliberate violation by the claimant, and the burden is not met when no evidence is presented establishing that the claimant knew or was put on notice of the existence of the rule alleged to be violated. [526]
3. Conduct by a dispatcher for a guard service in a shopping mall permitting a police officer to enter her station and to embrace her during working hours late at night with no shoppers present is not so inimical to the employer's interests or so violative of obvious behavior standards as to constitute wilful misconduct precluding her receipt of unemployment compensation benefits when she was discharged as a result of the incident. [527]
Submitted on briefs May 13, 1985, to President Judge CRUMLISH, JR., Judge COLINS, and Senior Judge BLATT, sitting as a panel of three.
Appeal, No. 2555 C.D. 1983, from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Christine A. Tongel, No. B-221381.
Application to the Office of Employment Security for unemployment compensation benefits. Benefits denied. Applicant appealed to the Unemployment Compensation Board of Review. Denial affirmed. Applicant appealed to the Commonwealth Court of Pennsylvania. Held: Reversed.
Alden Earl Bowen, Miller Bowen, for petitioner.
Charles D. Donahue, Associate Counsel, with him, Charles G. Hasson, Acting Deputy Chief Counsel, for respondent.
A referee's decision denying Christine A. Tongel benefits for willful misconduct was upheld by the Unemployment Compensation Board of Review. She appeals; we reverse.
See 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).
Tongel, a dispatcher for Wells Fargo Guard Services at the Allegheny Center Mall in Pittsburgh, was discharged for improper conduct and for allowing an unauthorized person into the security control center after her supervisor reported observing her being given a back rub by, and later embracing, a male police officer while she was on duty. The referee found, inter alia, that (1) the incident with the police officer did occur, (2) Wells Fargo's rules only permitted police officers to be in the security control center on official business, and (3) the police officer was not in the security control center on official business. The referee concluded that Tongel's actions constituted willful misconduct and the Board affirmed.
Where the employer, who has the burden of proving that the claimant's discharge was for willful misconduct, prevails below, our scope of review is limited to determining whether an error of law was committed and whether any necessary finding of fact is unsupported by substantial evidence. Jones v. Unemployment Compensation Board of Review, 74 Pa. Commw. 572, 460 A.2d 412 (1980). Whether a claimant's actions rise to the level of willful misconduct is a question of law subject to our review. Thompson v. Unemployment Compensation Board of Review, 28 Pa. Commw. 591, 368 A.2d 1386 (1977).
Tongel contends that her admittance of the police officer into the security control center does not rise to the level of willful misconduct because she was never informed that police officers were only permitted there while on official business. We agree.
Where the employer seeks to establish willful misconduct in the nature of a work rule violation, it must prove both the existence of the rule and that the claimant violated it. Albertson v. Unemployment Compensation Board of Review, 69 Pa. Commw. 394, 452 A.2d 275 (1982). The employer must present evidence that the claimant intentionally or deliberately violated the rule. See Bucher v. Unemployment Compensation Board of Review, 76 Pa. Commw. 282, 463 A.2d 1241 (1983). Our review of the record reveals no evidence that Tongel knew or was on notice that police officers were to be permitted in the security control center only while they were on official business. Thus, there is insufficient evidence from which to infer that Tongel intentionally or deliberately transgressed this rule.
The Board next argues that Tongel's behavior amounted to willful misconduct regardless of whether she violated a specific employment rule. We disagree.
A work rule violation need not be shown where the behavior standard is obvious, and the employee's conduct is so inimical to the employer's best interests that discharge is a natural result. Spare v. Unemployment Compensation Board of Review, 60 Pa. Commw. 570, 432 A.2d 283 (1981). The record here, however, discloses no evidence that Tongel's conduct with the police officer was so contrary to Wells Fargo's best interests as to justify discharge. The record reveals that the incident occurred during the latter portion of an 11:00 p.m. to 7:00 a.m. shift in a presumably empty shopping mall. The evidence fails to demonstrate how this interfered with Tongel's performance of her dispatcher duties. We must therefore conclude that Wells Fargo did not produce sufficient evidence to establish that Tongel's conduct contravened an obvious behavior standard and was so inimical to its best interests as to constitute willful misconduct.
Our review of the record reveals no evidence that Tongel and the police officer went beyond a momentary casual embrace; moreover, there is no evidence that they kissed.
The record indicates that the supervisor made his observations sometime between 3:00 a.m. and 5:45 a.m.
We accordingly hold that the Board erred as a matter of law by upholding the referee's conclusion that Tongel's actions constituted willful misconduct.
Since we reach this holding, we need not address Tongel's contentions that certain findings of fact were based solely on uncorroborated or objected-to hearsay and that she was actually discharged in retaliation for not filling out a report in the manner directed by Wells Fargo's branch manager.
Reversed.
ORDER
The Unemployment Compensation Board of Review order, No. B-221381 dated August 18, 1983, is reversed.