Midland Municipal Authority v. UCBR (Majority Opinion)
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Midland Municipal Authority, Petitioner v. Unemployment Compensation Board of Review, Respondent BEFORE: : : : : : : : : No. 1291 C.D. 2007 SUBMITTED: November 21, 2007 HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES R. KELLEY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY PRESIDENT JUDGE LEADBETTER FILED: January 25, 2008 Midland Municipal Authority (Employer) petitions this Court for review of an order of the Unemployment Compensation Board of Review (Board) that reversed a referee s decision denying benefits, and determined Phillip C. Tridico eligible for benefits under Section 402(e) of the Unemployment Compensation Law,1 43 P.S. ยง 802(e) [relating to involuntary termination of employment for willful misconduct]. The Board found as follows: Tridico worked as a sewer operator for Employer from September 1, 1992, through February 14, 2007. The Department of Environmental Protection 1 Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended. (DEP) issued periodic inspection reports serving to advise Tridico in 1993, 1999 and 2000 that he had to obtain his sewer operator certification. In 2005, Tridico was affiliated with the team negotiating a Union contract for employees. The terms of the Union contract were that Tridico was expected to acquire his sewer operator certification by June 1, 2006. Also according to this contract, management and the Union were to work together to afford Tridico the training material and activities necessary for certification. It was Tridico s responsibility to schedule the certification testing. Tridico alleges that Employer did not make adequate training materials available, and he did not feel properly prepared to take the certification exam. Employer alleges that it afforded adequate materials for training, and Tridico was encouraged to take the test, repeatedly if required. Tridico was not certified by June 1, 2006, nor did he try to take the exam before that date. The record is devoid of evidence that Employer disciplined Tridico at any time for failing to acquire the necessary certification before November 2006. DEP informed Employer in November 2006 that it was going to enforce state regulations requiring Employer to have at least two certified operators at its facility. Employer notified Tridico that he had to acquire his certification within thirty days, or it would hire a certified operator and furlough him. Tridico contacted the Union, and thereafter discovered that no certification examinations were scheduled during the thirty-day period. Employer received a January 17, 2007, order from DEP explaining that Employer had thirty days to meet the state regulation requiring two certified sewer operators for onsite work. Employer discharged Tridico on February 14, 2007, because, even after being notified that DEP was enforcing the regulation necessitating the certification of sewer operators, he still did not have his sewer operator certification. Employer permitted Tridico to 2 continue working for more than six months despite the fact that it was known Tridico did not have the required certification. Board s Decision (No. B-463081, mailed June 11, 2007), Findings of Fact Nos. 1-17 at 1-2. The Board then concluded in pertinent part: The Board finds the employer s testimony credible that the claimant was required to have his certification. However, the Board also finds the employer s testimony and the claimant s testimony credible that the claimant worked for more than 6 months without the required certification. The Board concludes that the employer condoned the claimant continuing to work without the certification, and that the claimant was discharged only because DEP informed the employer that it would be enforcing its regulations. Thus, because the employer condoned the claimant s failure to seek certification, the claimant s failure to seek the required certification does not rise to the level of willful misconduct. The employer has not met its burden. Id. at 4. On appeal to this court, Employer argues that the Board erred in granting benefits to Tridico because he committed willful misconduct in not obtaining the state-required certification and in violating the applicable collective bargaining agreement. Employer specifically argues: Although the testimony indicated that the claimant continued to work after June 1, 2006, the date that the contract required certification, the employer witness convincingly testified that he repeatedly attempted to assist the claimant in obtaining his certification so as to comply with state regulations. . . . The claimant was part of the team that negotiated the contract, and was fully aware of his responsibilities to obtain certification. . . . The training materials were provided to the claimant by the employer, along with test dates and notice of opportunities in western Pennsylvania to take the test. 3 Despite the encouragement from the employer, the claimant never applied to take the certification test. . . . This Court cannot conclude that between June 2006, and November 2006, and at the end of his employment that the claimant made any good faith effort to become certified. Employer s brief at 8-9. Willful misconduct is defined as an act of wanton or willful disregard of an employer s interests; a deliberate violation of its rules; a disregard of standards of behavior that it has the right to expect of an employee; or negligence that indicates an intentional disregard of an employer s interests 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, 748 n.4 (Pa. Cmwlth. 2000). The law is clear that the employer bears the burden of proving willful misconduct. Id.; Wideman v. Unemployment Comp. Bd. of Review, 505 A.2d 364, 366 (Pa. Cmwlth. 1986). In turn, the claimant carries the burden of showing good cause for his or her actions. Id. at 368. Moreover, an act constituting willful misconduct may not be the basis for a denial of benefits if it is condoned by employer. Lower Gwynedd Twp. v. Unemployment Comp. Bd. of Review, 404 A.2d 770, 772 (Pa. Cmwlth. 1979), criticized on other grounds, Grieb v. Unemployment Comp. Bd. of Review, 573 Pa. 594, 827 A.2d 422 (2003); Charles v. Unemployment Comp. Bd. of Review, 764 A.2d 708, 711 n.4 (Pa. Cmwlth. 2000). This is particularly true where the conduct is condoned repeatedly over a long period of time. On this record, Tridico s misconduct was in not achieving certification within the time dictated by the collective bargaining agreement, and in failing to be certified in accordance with state regulation. Nonetheless, we agree with the Board that Tridico s failure to be certified by June 1, 2006, in accordance with the Union contract terms, was tolerated until DEP informed Employer in 4 November 2006 that it would be enforcing state regulations requiring certification of operators at its facility.2 Tridico s supervisor testified as follows: [Claimant s lawyer:] So you did not separate Mr. Tridico . . . until and after this DEP Administrative Order was issued in 2006, is that correct? [Employer s Witness:] What what do you mean separate? [Claimant s Lawyer:] Separate them from their employment. [Employer s Witness]: Right. [Claimant s Lawyer:]: So . . . [Employer s Witness:] The DEP order told us what we had to do. Certified Record, Notes of Testimony, Hearing of April 17, 2007, Testimony of Richard Corradi at 27. Although Claimant s supervisor also testified to coaxing Tridico to take the applicable test, to posting the schooling and testing necessary for Tridico to be informed about what he had to do, that Tridico knew since 1993 that he had to be certified and that, he, Tridico s supervisor, was not running a daycare center[,] Id. at 25, he never stated that Tridico was threatened with 2 Tridico received a letter on behalf of Employer, dated November 28, 2006, which stated as follows: DEP has notified this Authority that we have 30 days to present to them the name of a certified operator. We have requested that DEP allow us to register you for the next available operator certification test in the region. If you do not take the test or fail to pass the examination, the Authority will have to proceed with hiring a certified operator. This will then mean that there will be no positions in the plant for you to bump to and lead to your layoff from employment with the Authority. Certified Record at 7. Moreover, Employer s separation information indicated that the reason for Tridico s separation was that [t]he Authority received an Administrative Order from the Department of Environmental Protection on January 16, 2007 that the operator at the sewer plant must be certified in order to do the job. Tridico is not certified and there were no other positions opened in his line of progression. Id. at 3. 5 discharge for failing to be certified until employer was forced by DEP to comply with the state regulations in 2007. When Employer finally acted, it was too late for Tridico to be certified in time to comply with DEP s mandate. Under these circumstances, we must conclude that employer s possibly benevolent but ill-advised tolerance of Tridico s extended and intractable failure to obtain his certification precludes a finding of willful misconduct, and we affirm the order of the Board. Order affirmed. _____________________________________ BONNIE BRIGANCE LEADBETTER, President Judge 6 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Midland Municipal Authority, Petitioner v. Unemployment Compensation Board of Review, Respondent : : : : : : : : No. 1291 C.D. 2007 ORDER AND NOW, this 25th day of January, 2008, the order of the Unemployment Compensation Board of Review in the above-captioned matter is hereby AFFIRMED. _____________________________________ BONNIE BRIGANCE LEADBETTER, President Judge
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