IN THE COMMONWEALTH COURT OF PENNSYLVANIA William Strykowski, Petitioner v. Unemployment Compensation Board of Review, No. 80 C.D. 2013 Respondent Submitted May 10, 2013 BEFORE HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ANNE E. COVEY, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE COVEY FILED June 19, 2013 William Strykowski (Claimant) petitions this Court for review of the Unemployment Compensation Board of Review s (UCBR) January 4, 2013 order affirming the Referee s decision denying Claimant unemployment compensation (UC) benefits under Section 402(e) of the Unemployment Compensation Law (Law). 1 There are two issues before the Court (1) whether the City of Philadelphia (Employer) met its burden of proving that Claimant s conduct rose to the level of willful misconduct, and (2) whether there is sufficient record evidence to support the finding of fact that Claimant violated Employer s drug and alcohol policy. We affirm. Claimant was employed full-time as an Assessment Aide for Employer beginning July 2, 2010 and ending July 2, 2012. Employer has a drug and alcohol policy which prohibits the use of drugs or alcohol while on Employer s premises or 802(e). 1 Act of December 5, 1936, Second Ex.Sess., P.L. (1937) 2897, as amended, 43 P.S.
during any work hours, including lunch and break periods. Employer s standard workday policy consists of eight hours of core time, flex time or leave time, with a maximum of one-half hour for lunch, Monday through Friday. Sometime prior to May 14, 2012, the City s Inspector General s Office received allegations regarding Claimant s theft of Employer time. The Inspector General s Office conducted an investigation which found that on January 13, 2012, January 26, 2012, and February 8, 2012, Claimant was observed away from Employer s offices during his regularly scheduled work hours exceeding his 30 minute lunch break and consuming alcoholic beverages during his lunch break. The Inspector General s Office reported to Employer on or around May 14, 2012. After receiving the report, on June 28, 2012, Employer conducted a disciplinary meeting at which Claimant, Claimant s union representative, the union shop steward and Claimant s supervisor were present. 2 Original Record (O.R.), Item No. 8 at 5 and 11. During the meeting, Employer informed Claimant of the allegations. Claimant did not admit to the allegations nor did he refute them. Employer suspended Claimant on July 2, 2012, for 30 days with intent to dismiss. Claimant was discharged effective August 14, 2012, for violating the Employer s drug and alcohol policy, and workday policy. Claimant subsequently applied for UC benefits. On July 19, 2012, the Philadelphia UC Service Center determined that Claimant was ineligible for UC benefits under Section 402(e) of the Law. Claimant appealed and, on August 22, 2012, a Referee held a hearing. On August 23, 2012, the Referee mailed his decision 2 Employer s Human Resource Manager Shauna Bracy testified that the reason there was a delay between the Inspector General s report and the disciplinary hearing was because it took them awhile (sic) to coordinate a Union rep to be present for [him]. Original Record, Item No. 8 at 11. 2
affirming the UC Service Center s determination. Claimant appealed to the UCBR. The UCBR affirmed the Referee s decision. Claimant appealed to this Court. 3 willful misconduct. Claimant first argues that Employer failed to meet its burden of proving Specifically, Claimant contends that he was not aware of Employer s policies, thus, he could not have committed willful misconduct. Initially, we recognize Section 402(e) of the Law provides that an employee is ineligible for unemployment compensation benefits when his unemployment is due to discharge from work for willful misconduct connected to his work. The employer bears the burden of proving willful misconduct in an unemployment compensation case. Willful misconduct has been defined as (1) an act of wanton or willful disregard of the employer s interest; (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 a disregard of the employee s duties and obligations to the employer. Dep t of Transp. v. Unemployment Comp. Bd. of Review, 755 A.2d 744, 747-48 n.4 (Pa. Cmwlth. 2000) (citation omitted). Where the claimant is discharged for a work rule violation, the employer has the burden to show that the claimant was aware that the work rule existed and that the claimant violated the rule. Roberts v. Unemployment Comp. Bd. of Review, 977 A.2d 12, 16 (Pa. Cmwlth. 2009). The employer must present evidence that the claimant intentionally or deliberately violated the rule. Tongel v. Unemployment Comp. Bd. of Review, 501 A.2d 716, 717 (Pa. Cmwlth. 1985). A claimant cannot be found to have willfully or intentionally violated a rule of which he was unaware. Tongel. 3 This Court s review is limited to determining whether the findings of fact were supported by substantial evidence, whether constitutional rights were violated, or whether errors of law were committed. Johnson v. Unemployment Comp. Bd. of Review, 869 A.2d 1095 (Pa. Cmwlth. 2005). 3
Claimant contends he was never given a copy of Employer s drug and alcohol policy or workday policy. However, Claimant was a union member. According to Employer s Human Resource Manager Shauna Bracy (Bracy), the drug and alcohol policy was negotiated between the City and the Union[.] O.R., Item No. 8 at 8. The drug and alcohol policy introduction, reads in pertinent part Therefore, in accordance with the Drug Free Workplace Act, and pursuant to negotiations with applicable bargaining units, the City of Philadelphia adopts the following Drug and Alcohol Abuse policy, which shall apply to all non-uniformed employees in and applicants to positions in the City of Philadelphia.... O.R., Item No. 8 at E2. This Court has stated [W]e note that this legal principle, that a CBA is binding on union members when their agent negotiates an agreement on their behalf, which is later ratified, is well-settled in federal law. In Michota v. Anheuser Busch, Inc., 755 F.2d 330 (3d Cir.1985), the court was presented with a challenge by pension fund participants to a CBA, which included a partial termination clause. This clause was bargained for by employee representatives and was later ratified and inserted into the CBA. The court concluded that the pension fund participants received sufficient notice of the contents of the clause based upon its inclusion into the CBA. The court emphasized that [t]he ability of duly elected bargaining representatives to bargain effectively is dependent in part upon its ability to bind the employees it represents to the terms of a negotiated agreement. The Michota court explained that although some employees may disagree with many of the decisions made by their union, which represents their interests, nonetheless, those employees are bound by the terms bargained for by their union. Moreover, the proposition that union members are bound by a CBA that was negotiated on their behalf by an agent has been upheld by the Supreme Court in the realm of unemployment compensation (UC) cases. 4
Delaney v. City of Wilkes-Barre, 947 A.2d 854, 861 (Pa. Cmwlth. 2008) (bold added). Further, [claimants] are bound by the total result negotiated by the union on their behalf and cannot selectively choose or reject aspects of a negotiated agreement as they would wish. Norcini v. City of Coatesville, 915 A.2d 1243, 1245-46 (Pa. Cmwlth. 2007) (quoting Pennsylvania State Troopers Association v. Pennsylvania State Employes Retirement Board, 677 A.2d 1329, 1331 (Pa. Cmwlth. 1996)). By the drug and alcohol policy s inclusion in the collective bargaining agreement between Claimant s Employer and union, Claimant knew or should have known of the policy. Accordingly, Claimant s argument must fail. Claimant next contends that there is insufficient evidence to support the finding of fact that he violated Employer s drug and alcohol policy. We disagree. In Claimant s UC Questionnaire he was asked, [d]id you violate the rule? to which Claimant answered Yes. O.R., Item No. 2 at 1. In addition, at the Referee hearing, the Referee expressly asked Claimant, [s]o did you consume alcoholic beverages on lunch on your lunch periods on occasion? to which Claimant responded Yes, sir. O.R., Item No. 8 at 17. Substantial evidence has been defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. City of Pittsburgh, Dep t of Pub. Safety v. Unemployment Comp. Bd. of Review, 927 A.2d 675, 676 n.1 (Pa. Cmwlth. 2007) (quotation marks omitted). Clearly, Claimant s admissions are such relevant evidence that a reasonable mind might accept to support the conclusion that he violated Employer s drug and alcohol policy. See Walsh v. Unemployment Comp. Bd. of Review, 943 A.2d 363 (Pa. Cmwlth. 2008) (wherein despite a claimant s assertions that challenged witness statements were hearsay, the claimant s admission was sufficient competent evidence to support the conclusion that he violated his employer s policy). Accordingly, there is substantial record evidence to support the conclusion that Claimant committed willful misconduct. 5
For all of the above reasons, the UCBR s order is affirmed. ANNE E. COVEY, Judge 6
IN THE COMMONWEALTH COURT OF PENNSYLVANIA William Strykowski, Petitioner v. Unemployment Compensation Board of Review, No. 80 C.D. 2013 Respondent O R D E R AND NOW, this 19 th day of June, 2013, the Unemployment Compensation Board of Review s January 4, 2013 order is affirmed. ANNE E. COVEY, Judge