T. B. Cooper v. UCBR (Majority Opinion)

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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Terron B. Cooper, Petitioner v. Unemployment Compensation Board of Review, Respondent BEFORE: : : : : : : : : : : No. 1975 C.D. 2007 Submitted: March 28, 2008 HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE RENÃ E COHN JUBELIRER, Judge HONORABLE JAMES R. KELLEY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE COHN JUBELIRER FILED: July 2, 2008 Terron B. Cooper (Claimant) petitions for review of an order of the Unemployment Compensation Board of Review (Board), which affirmed the Referee s determination to disallow benefits under Section 402(e) of the Unemployment Compensation Law (Law).1 For the reasons discussed herein, we affirm the order of the Board. 1 802(e). Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § Claimant applied for unemployment compensation benefits after becoming separated from his employment with Accutool Machine (Employer). The Altoona Unemployment Compensation Service Center (Service Center) determined that Claimant was ineligible for benefits pursuant to Section 402(e) of the Law. Claimant appealed the Service Center s determination, and an evidentiary hearing was held before a Referee at which Claimant, his attorney, and three witnesses for Employer appeared. Following the hearing, the Referee issued a decision affirming the Service Center s determination and denying benefits. Claimant subsequently appealed the Referee s decision to the Board. The Board issued a decision and order affirming the Referee s decision and finding Claimant ineligible for benefits under Section 402(e) of the Law. In its decision, the Board made the following findings of fact: 1. The claimant was last employed full-time as a machinist by Accutool Machine from October 9, 2006 to June 29, 2007 earning $11.00 per hour. 2. The employer rules prohibit sleeping on company premises, which the claimant should have known. 3. In January 2007, the claimant was given a three-day suspension for sleeping on the job. 4. On June 29, 2007, the claimant s supervisor found him sleeping in the lunch room area. 5. On June 29, 2007, the claimant was discharged due to sleeping on the employer s property. 6. The claimant asserts that he felt fatigued, took an early lunch and lied down and was resting in the lunch room area. The claimant denied sleeping. (Board Decision, Findings of Fact (FOF) ¶¶ 1-6.) The Board found the testimony of Employer s witnesses to be credible and discredited Claimant s assertion that he was 2 resting during his lunch break.2 Based on its findings and credibility determinations, the Board concluded that Claimant committed willful misconduct because he violated Employer s rule against sleeping on company premises, and because his sleeping on the job was conduct inimical to the standards of behavior an employer has a right to expect of its employees. The Board also found it relevant that Claimant had been warned by Employer about sleeping on the job and had previously been given a threeday suspension for doing so. Accordingly, the Board determined that Claimant was ineligible for benefits under Section 402(e) of the Law and affirmed the Referee s decision. Claimant s appeal to this Court followed.3 On appeal, Claimant argues that the Board erred in finding that his conduct rose to the level of willful misconduct. Under Section 402(e) of the Law, an employee is ineligible for unemployment compensation for any week in which his unemployment is due to a discharge or temporary suspension from work for willful misconduct connected with his work. Willful misconduct has been defined as the (a) wanton and willful disregard for an employer's interests, (b) deliberate violation 2 In its brief, the Board appears to concede that Claimant was taking a lunch break when he was discovered sleeping. (Board s Br. at 6.) Thus, we believe that the Board only discredited Claimant s testimony to the extent that he alleged he was resting, and not sleeping. 3 The Court s review is limited to determining whether constitutional rights were violated, whether an error of law was committed, whether a practice or procedure of the Board was not followed or whether the findings of fact are supported by substantial evidence in the record. W. & S. Life Ins. Co. v. Unemployment Compensation Board of Review, 913 A.2d 331, 334 n.2 (Pa. Cmwlth. 2006). Whether a Claimant s conduct constitutes willful misconduct is a question of law reviewable by this Court. Orend v. Unemployment Compensation Board of Review, 821 A.2d 659, 661 (Pa. Cmwlth. 2003). Also, [t]he Board is the ultimate fact-finding body in unemployment matters and is empowered to resolve conflicts in evidence, to determine what weight is to be accorded the evidence, and to determine the credibility of witnesses. Guthrie v. Unemployment Compensation Board of Review, 738 A.2d 518, 521 (Pa. Cmwlth. 1999). 3 of an employer's rules, (c) disregard for standards of behavior which an employer can rightfully expect of an employee, or (d) negligence indicating an intentional disregard of the employer's interests or an employee's duties and obligations. Caterpillar, Inc. v. Unemployment Compensation Board of Review, 550 Pa. 115, 123, 703 A.2d 452, 456 (1997). The employer has the burden of proving that an employee was discharged for willful misconduct. Graham v. Unemployment Compensation Board of Review, 840 A.2d 1054, 1056 (Pa. Cmwlth. 2004). In order to establish that an employee committed willful misconduct through a rule violation, the employer must prove the existence of the rule and its violation. Caterpillar, 703 A.2d at 456. Even in the absence of a specific rule against certain conduct, an employee commits willful misconduct where the standard of behavior is obvious and the employee's conduct is so inimical to the employer's interests that discharge is a natural result. Orend v. Unemployment Compensation Board of Review, 821 A.2d 659, 663 (Pa. Cmwlth. 2003) (citing Biggs v. Unemployment Compensation Board of Review, 443 A.2d 1204 (Pa. Cmwlth. 1982)). Sleeping on the job is considered a prima facie act of willful misconduct because it falls outside the standards of behavior which an employer can rightfully expect and represents a wanton or willful disregard of the employer s interests. Biggs, 443 A.2d at 1205. Once a prima facie showing of willful misconduct is made, an employee may rebut such a showing by demonstrating good cause for sleeping on the job. Id. Here, Claimant continues to argue that he was merely resting, and not sleeping, in the final incident for which he was discharged. (Claimant s Br. at 11.) Moreover, Claimant contends that, even if he was sleeping, such conduct did not constitute 4 willful misconduct. Claimant argues that the Board s Finding of Fact No. 2, that he should have been aware that Employer prohibited sleeping on the company premises, is not supported by substantial evidence since nothing in the record indicates he received adequate notice of the rule.4 Claimant admits that, on a previous occasion, he had gone to sleep after arriving at work and that Employer had disciplined him for that incident with a three-day suspension. However, Claimant argues that the warning he received said only that sleeping on company time is not permitted. (Employee Notification of Written Warning, Service Center Exhibit No. 10 (emphasis added).) Claimant argues that there is a difference between sleeping on company time and sleeping on company premises and that, while he was warned not to do the former, he had never been told not to do the latter. Claimant also argues that, contrary to the Board s opinion, his actions did not show a disregard for the standards of behavior an employer has the right to expect of an employee. Claimant asserts that his actions created no harm to Employer since he was found to be lying down during his lunch break, and not on company time. With regard to Claimant s ongoing contention that he was not sleeping, but merely resting, we will not overturn a finding of the Board that is both based on a credibility determination and supported by substantial evidence. See Guthrie v. Unemployment Compensation Board of Review, 738 A.2d 518, 521 (Pa. Cmwlth. 1999); Peak v. Unemployment Compensation Board of Review, 509 Pa. 267, 501 A.2d 1383 (1985). Here, the Board credited the testimony of Employer s witness, 4 The Board argues that Claimant did not specifically challenge Finding of Fact No. 2 and that any argument regarding it is, therefore, waived. (Board s Br. at 5.) However, we conclude that Claimant sufficiently preserved his challenge to this finding in his Petition for Review, as well as in the Statement of Questions Involved and Argument portions of his brief. 5 who described entering the lunchroom, seeing Claimant, and calling his name. Claimant, who was lying down, with his eyes closed, on six chairs that he had put together, did not respond when Employer s witness called his name. The Board specifically discredited Claimant s testimony that he was only resting, and not sleeping. The credited testimony provides substantial evidence to support the Board s finding that Claimant was sleeping. Therefore, we find no merit in Claimant s argument. Claimant s main contention is that he did not receive adequate notice of a work rule prohibiting sleeping on company premises. The Board s findings refer to employer rules which are variously described as prohibiting sleeping on company premises (FOF ¶ 2), sleeping on the job (FOF ¶ 3), and sleeping on the employer s property (FOF ¶ 5). In addition, as Claimant argues, he had been notified that sleeping on company time is not permitted (Exhibit 3). If Claimant considered the written warning that Employer gave Claimant after his infraction to be the formulation of a specific work rule, we would have to agree that there is no evidence in the record that Claimant was aware of a specific rule prohibiting sleeping on company premises.5 However, even if we agree with Claimant that he believed he was only prohibited from sleeping on company time, under these facts we would have to find that he violated that prohibition. Employer pays its employees during their twenty5 One of Employer s witnesses testified that employees are not allowed to sleep on the company s premises and that Claimant was discharged for this reason. (Referee Hr g Tr. at 4-5.) However, there is no evidence in the record that Claimant was ever made aware of this latter version of the rule. 6 minute lunch breaks, and the employees are not required to punch out. Kelly Donlon, Employer s Executive Administrator, testified that, during lunch, employees are still on Employer s time clock because they do not punch out. (Referee Hr g Tr. at 4.) Claimant concedes that the lunch breaks are paid. (Claimant s Br. at 11.) Ms. Donlon also testified that the purpose of taking a lunch break is to eat, drink, and use the restroom. (Referee Hr g Tr. At 4.) Therefore, we believe that Claimant violated even the formulation of the prohibition against sleeping that he believed applied to him. Moreover, even in the absence of a specific rule, the courts have found that sleeping on the job constitutes willful misconduct. Biggs, 443 A.2d at 1205-06. Thus, there is a general prohibition against sleeping on the job, which would include situations when an employee is found sleeping when he should be working, or when he is being paid by the employer. Although, in its findings, the Board referred to the prohibition against sleeping on company premises as part of the employer rules, we believe that the Board did not intend to specify a particular work rule of employer that Claimant violated. Instead, as can be seen by the Board s multiple characterizations of the prohibition, and in its discussion, we believe the Board found that Claimant violated the general prohibition against sleeping on the job, which is clearly inimical to the standards of behavior an employer has a right to expect of its employees. 6 (Board Opinion at 2). This is supported by case law. 6 Even if we had determined that the Board incorrectly found that Claimant violated a specific work rule of Employer prohibiting sleeping on company premises, we would nonetheless affirm the Board s decision. [W]here an administrative agency assigns an erroneous reason to a correct decision and the record clearly shows the correct basis for the decision, this court can sustain the result. Waltz v. Unemployment Compensation Board of Review, 533 A.2d 199, 201 (Pa. Cmwlth. 1987). 7 An employer has a right to expect that employees will not sleep during short periods of forced idleness, absent proof that the employer either permits or tolerates such sleeping. Unemployment Compensation Board of Review v. Simone, 355 A.2d 614, 616 (Pa. Cmwlth. 1976). In Simone, the employee took his assigned truck to his employer s motor pool for repairs. While waiting for the mechanic to finish the repairs, the employee went into the mechanic s office and fell asleep. This Court determined that the employee committed willful misconduct when he fell asleep during the time he was forced to sit idle and wait for his truck to be repaired. Id. The Court further held that an employee would not satisfy his burden of showing good cause by proving that he was asleep only during a period of forced idleness or slack time. Id. The fact that an employee was on a break when he fell asleep does not compel a different result. In Kelley v. Unemployment Compensation Board of Review, 429 A.2d 1227, 1228-29 (Pa. Cmwlth. 1981), the employee, a machine operator, left his machines running and was found asleep away from his work area during a ten minute break. The employee was discharged for sleeping on the job while his machines were running. The employer testified at the Referee hearing that employees were not permitted to sleep during their breaks and must remain awake at their assigned work areas. Despite the employee s argument that he did not commit willful misconduct since he was unaware that his employer prohibited sleeping on breaks, this Court applied Simone and affirmed the Board s decision that the employee committed willful misconduct. Id. Under the above cases, a lunch break can be fairly seen as a period of forced idleness. 8 Thus, the Board did not err in finding that Claimant committed a prima facie act of willful misconduct. Biggs. Claimant was discovered sleeping during a paid lunch break and, because Claimant was on Employer s time during his lunch break, he was sleeping on the job. While Claimant argues that he did not commit willful misconduct since he was on a break, under Simone and Kelly his conduct nevertheless rises to the level of willful misconduct. In those cases, the employer found its employees asleep when they were expected to be awake. Similarly, in this case, Claimant was found sleeping during a break that Employer expected him to use to eat lunch, get a drink, or go to the restroom, but not sleep. Thus, Claimant committed willful misconduct because he was expected to be awake, and not asleep, during his lunch break. Additionally, there is no evidence in the record to suggest that Claimant had good cause, or that Employer tolerated sleeping by other employees. To the contrary, the prior written warning that Claimant admittedly received establishes that Employer did not tolerate sleeping by employees. Since there is no indication that Claimant had good cause for sleeping on the job, the Board did not err in denying Claimant benefits under Section 402(e) of the Law. Accordingly, the order of the Board is affirmed. _________________________________ RENÃ E COHN JUBELIRER, Judge 9 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Terron B. Cooper, Petitioner v. Unemployment Compensation Board of Review, Respondent : : : : : : : : : : No. 1975 C.D. 2007 ORDER NOW, July 2, 2008, the order of the Unemployment Compensation Board of Review in the above-captioned matter is hereby AFFIRMED. _________________________________ RENÃ E COHN JUBELIRER, Judge

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