               IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Angelo M. Rodriguez,                       :
                           Petitioner      :
                                           :
                    v.                     :
                                           :
Unemployment Compensation                  :
Board of Review,                           :   No. 50 C.D. 2015
                    Respondent             :   Submitted: January 29, 2016


BEFORE:      HONORABLE MARY HANNAH LEAVITT, President Judge
             HONORABLE ANNE E. COVEY, Judge
             HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE COVEY                                    FILED: June 14, 2016

             Angelo M. Rodriguez (Claimant) petitions this Court for review of the
Unemployment Compensation (UC) Board of Review’s (UCBR) December 30, 2014
order affirming the Referee’s decision finding Claimant ineligible for UC benefits
under Section 402(e) of the UC Law (Law).1 There are three issues for this Court’s
review: (1) whether the UCBR erred by finding that Claimant committed willful
misconduct; (2) whether the UCBR erred by finding that Claimant did not have good
cause to violate Tredegar Film Product’s (Employer) work rule; and, (3) whether the
UCBR’s conclusion that Claimant failed to notify Employer of his absences in
accordance with Employer’s attendance policies is supported by substantial evidence.
After review, we affirm.



      1
          Act of December 5, 1936, Second Ex.Sess., P.L. (1937) 2897, as amended, 43 P.S. §
802(e) (relating to discharge for willful misconduct).
               Claimant was employed as an extrusion product technician by Employer
from March 13, 2013 until September 15, 2014.2                    Section 4.3.1 of Employer’s
attendance policy (Policy) provides:

               4.3.1.1 An employee who is going to be absent on a
               scheduled workday must notify [Employer] as soon as
               possible prior to the start of their [sic] scheduled shift . . . .
               The absence will be counted as an Absent With Notice . . .
               if the following criteria are met:
                  4.3.1.1.1 Employees are required to provide
                  notification no later than one hour after the start of the
                  scheduled shift.
                  4.3.1.1.2 Employee speaks directly with his/her direct
                  supervisor or designated backup. An employee must
                  not rely on another individual, including one’s spouse,
                  to notify or explain the reason for an absence to the
                  above-mentioned individuals unless the employee is
                  incapacitated and unable to make the call personally.
               4.3.1.2 Failure to meet the above criteria constitutes an
               Absence Without Notice . . . .

Reproduced Record (R.R.) at 148a. Table 4.7.1.1 of the Policy provides that two
absences without notice within a 12-month period will result in the issuance of
an employment termination letter. See R.R. at 152a. Claimant participated in
Employer’s new hire orientation and was made aware of the Policy. See R.R. at 57a;
see also R.R. at 64a.
               Claimant worked night shifts which began on one date and ended on the
following day.3 On September 8, 2014, Claimant asserted that he was injured while
working the night shift.           The following morning Claimant was examined by
Employer’s physician and cleared to return to regular duty. Claimant did not report
to work on his next scheduled shift days - September 9, 12 and 13, 2014. On the

      2
          Claimant’s last work day was September 8, 2014.
      3
          Employer designated the work day by the starting date of the work shift.
                                                  2
morning of September 9, 2014, Claimant made several unsuccessful attempts to reach
Employer’s safety director by phone, and ultimately left a message for the safety
director stating that Claimant needed to discuss his injury.4 The safety director,
however, did not return Claimant’s call.              Claimant did not contact his direct
supervisor before the start of his scheduled shift on September 9, 2014 and did not
work on that date. On September 12, 2014, Claimant spoke with his supervisor and
called off work.5 Although scheduled, Claimant did not work on September 13,
2014, and he did not notify Employer of his absence. On September 14, 2014,
because Employer believed that Claimant had failed to notify Employer of his
absences for three consecutive days, Employer notified Claimant that he should
report to Employer’s offices on September 15, 2014, instead of reporting to work.
On September 15, 2014, Employer discharged Claimant for violation of Employer’s
Policy. Employer’s discharge letter (Discharge Letter) stated, in relevant part:

               In accordance with the [Policy] and the collective
               bargaining agreement (CBA) . . . you have had multiple
               violations and 3 absences without notice (AWON) events
               which occurred on Tuesday, September 9, Friday,
               September 12 and Saturday, September 13. Therefore, after
               careful consideration of the seriousness of these actions and
               behaviors[,] [Employer] has determined that in accordance
               with the [P]olicy and the CBA[,] your employment is being
               terminated immediately.

R.R. at 28a.



       4
          Claimant admitted that his attempts to reach Employer’s safety director were related to
arranging an examination by Employer’s physician not for the purpose of calling off. See R.R. at
65a.
       5
          Although Employer contended that Claimant did not call his supervisor to call off work on
September 12, 2014, it produced only an email from Claimant’s supervisor in support thereof.
Because the email constituted hearsay and was uncorroborated, the UCBR did not consider it. In
contrast, Claimant testified he did contact his supervisor on that date to report his absence. The
UCBR found Claimant’s testimony on this point credible.
                                                3
               Claimant applied for UC benefits. On September 30, 2014, the Scranton
UC Service Center found Claimant ineligible for benefits under Section 402(e) of the
Law. Claimant appealed and, on October 29, 2014, a Referee hearing was held. On
November 4, 2014, the Referee affirmed the UC Service Center’s determination.
Claimant appealed to the UCBR. On December 30, 2014, the UCBR affirmed the
Referee’s decision. Claimant appealed to this Court.6
               Initially,

               [w]illful misconduct has been defined as: (1) a wanton and
               willful disregard of the employer’s interests; (2) a deliberate
               violation of the employer’s rules; (3) a disregard of the
               standards of behavior that an employer rightfully can expect
               from its employees; or (4) negligence that manifests
               culpability, wrongful intent, or evil design, or an intentional
               and substantial disregard of the employer’s interests or the
               employee’s duties and obligations. The employer has the
               burden of proving that it discharged an employee for willful
               misconduct. Id.
               When an employee is discharged for violating a work rule,
               the employer must prove the existence of the work rule, the
               reasonableness of the rule, the claimant’s awareness of the
               rule, and the fact of its violation. The burden then shifts to
               the employee to prove that he or she had good cause for
               violating the rule. An employee establishes good cause by
               showing that his or her conduct was justified or reasonable
               under the circumstances.

Adams v. Unemployment Comp. Bd. of Review, 56 A.3d 76, 78-79 (Pa. Cmwlth.
2012) (citations omitted); see also Henderson v. Unemployment Comp. Bd. of




       6
          “Our scope of review is limited to determining whether constitutional rights were violated,
whether an error of law was committed, or whether the findings of fact were unsupported by
substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.C.S. § 704.” Turgeon v.
Unemployment Comp. Bd. of Review, 64 A.3d 729, 731 n.3 (Pa. Cmwlth. 2013).


                                                 4
Review, 77 A.3d 699, 718-19 (Pa. Cmwlth. 2013); Bruce v. Unemployment Comp.
Bd. of Review, 2 A.3d 667 (Pa. Cmwlth. 2010).7
                Claimant first argues that the UCBR erred when it found that he had
committed willful misconduct.8              Claimant asserts Employer failed to satisfy its
burden of establishing that Claimant’s failure to notify his supervisor in accordance
with the Policy was intentional or deliberate given Employer’s awareness of his

       7
           This Court has explained that:

                ‘Absenteeism alone, while grounds for discharge, is not a sufficient
                basis for denial of unemployment benefits. An additional element,
                such as lack of good cause for absence, is necessary.’ Runkle v.
                Unemployment Comp[.] B[d.] of Review, . . . 521 A.2d 530, 531 (Pa.
                Cmwlth. 1987). Factors that are considered in determining whether
                absenteeism constitutes willful misconduct are: (1) excessive
                absences; (2) failure to notify the employer in advance of the
                absence; (3) lack of good or adequate cause for the absence; (4)
                disobedience of existing company rules, regulations, or policies
                with regard to absenteeism; and (5) disregard of warnings regarding
                absenteeism.
Miller v. Unemployment Comp. Bd. of Review, 131 A.3d 110, 113 (Pa. Cmwlth. 2015) (emphasis
added).
        8
          Specifically, in Claimant’s first argument, he makes eight enumerated assertions: (1)
Employer was on notice that Claimant might not be able to work since Claimant immediately
reported his work injury; (2) Employer prohibited Claimant from visiting his own physician and
required Claimant to see Employer’s physician; (3) Claimant visited Employer’s physician who
released him to work, but because Claimant was still in pain, pursuant to Employer’s physician’s
instructions, he sought advice from his personal physician and an orthopedist who agreed that
Claimant should not return to work; (4) Claimant called Employer’s safety director four times on
September 9, 2014, left a detailed message about his injury circumstances but was not called back;
(5) Claimant called twice on September 12, 2014, spoke with a shift supervisor and told the
supervisor he was calling off; (6) Employer left a message for Claimant on Saturday, September 13,
2014 directing him not to return to work, and confirmed the message in a conversation on
September 14, 2014; (7) as memorialized in an email, Employer was intolerant of Claimant’s
intention to obtain his own medical opinion and Claimant’s need for time off, and was more
concerned that Claimant would lower Employer’s safety rating; and, (8) Claimant did not engage in
willful misconduct where he was absent for a work injury, spoke with management (who were his
supervisors’ managers), offered to produce medical documentation to demonstrate his injury, and
believed he was speaking with the correct individuals given that his injury involved a workers’
compensation matter.
                                                  5
injury, his repeated attempts to contact Employer’s safety director on September 9,
2014, his explicit prior notification to a supervisor of his absence on September 12,
2014, and given that he did not believe it necessary to contact Employer on
September 13, 2014 because he was directed not to report to work that day.9 We
disagree.
              Employer established the existence of the Policy, that Claimant was
aware of the Policy, and that Claimant failed to comply therewith. Importantly,
Claimant admitted that his multiple attempts at contacting the safety director on
September 9, 2014 were not for the purpose of notifying Employer that he would be
absent from work that day.          There is no evidence demonstrating that Claimant
attempted to contact Employer on September 9, 2014, for the purpose of complying
with the Policy notification provision.
              Claimant testified and the UCBR found that Claimant spoke with his
supervisor on September 12, 2014, and called off of work. However, regarding
September 13, 2014, the UCBR accepted Employer’s testimony that no one contacted
Claimant directing him not to report to work until September 14, 2014. Despite
Claimant’s testimony that he received the message on September 13, 2014 and was
not required to notify Employer that he would be absent September 13, 2014, the




       9
       Employer’s witness testified that he did not leave the message not to report to work until
September 14, 2014. Employer’s witness explained:

              It was Sunday the 14th when – after [sic] I had spoken with
              [Claimant]. I forgot to tell him that, and I called him back and left
              [a] message on his machine on the 14th that he should not come in
              because he had already exceeded the three days no-call, no show.
R.R. at 59a. The UCBR found that “[o]n September 14, 2014, [Employer] notified [Claimant] not
to report to work[,] and set up a meeting[.]” R.R. at 199a (emphasis added). Thus, contrary to
Claimant’s assertion, the UCBR found that “[o]n September 13, 2014, [Claimant] did not notify
[Employer] of his absence.” Id.
                                               6
UCBR found Employer credible on this matter.10 Thus, the record evidence supports
the UCBR’s findings that Claimant failed to notify Employer on two occasions that
he would be absent from work. We, therefore, conclude that the UCBR properly
found that Claimant violated Employer’s Policy. See, e.g., Landy & Zeller, Attorneys
at Law v. Unemployment Comp. Bd. of Review, 531 A.2d 1183 (Pa. Cmwlth. 1987);
see also Logan v. Unemployment Comp. Bd. of Review, 434 A.2d 877 (Pa. Cmwlth.
1981).
              Claimant next argues that, even assuming he violated a work rule, he had
good cause to do so. Claimant contends that because his absence resulted from a
work injury and involved workers’ compensation, he reasonably believed that he was
to communicate with Employer’s safety director and Employer’s human resources
department. Quoting Roberts v. Unemployment Compensation Board of Review, 977
A.2d 12, 16 (Pa. Cmwlth. 2009), Claimant further asserts that “[p]recedent teaches
that taking actions to advance a patient’s health and safety will constitute good cause
to violate an employer’s work rule.”           Claimant’s Revised Br. at 24 (emphasis
omitted). We disagree.
              Claimant offers no legal authority for his position that an employee is
relieved of his obligation to adhere to an employer’s call-off notification work rule if


       10
             The law is clear that the [UCBR] is the ultimate finder of fact and
             arbiter of witness credibility. Peak v. Unemployment Comp[.] B[d.] of
             Review, . . . 501 A.2d 1383, 1385, 1388 ([Pa.] 1985). Thus, as long as
             the [UCBR’s] factual findings are supported by substantial evidence,
             those findings are conclusive on appeal. Geesey v. Unemployment
             Comp[.] B[d.] of Review, . . . 381 A.2d 1343, 1344 ([Pa. Cmwlth.]
             1978). That [a c]laimant may have given ‘a different version of the
             events, or . . . might view the testimony differently than the [UCBR],
             is not grounds for reversal if substantial evidence supports the
             [UCBR’s] findings.’ Tapco, Inc. v. Unemployment Comp[.] B[d.] of
             Review, . . . 650 A.2d 1106, 1108–09 ([Pa. Cmwlth.] 1994).
Bruce v. Unemployment Comp. Bd. of Review, 2 A.3d 667, 671-72 (Pa. Cmwlth. 2010).


                                              7
his injury may involve a workers’ compensation claim.                    Moreover, Employer’s
Policy clearly provided that “[a]n employee who is going to be absent on a scheduled
workday must notify [Employer] as soon as possible prior to the start of their [sic]
scheduled shift[.]” R.R. at 148a (emphasis added). Claimant admittedly did not
attempt do so on September 9, 2014,11 or on September 13, 2014. Further, assuming
arguendo that Claimant’s absence from work was necessary to “advance [his] health
and safety[,]” his failure to notify Employer as required by the Policy was not.12
Roberts, 977 A.2d at 16.             Accordingly, we conclude that Claimant did not
demonstrate good cause for his violation of Employer’s Policy.
               Finally, Claimant argues that the UCBR erred by finding Claimant
ineligible for UC benefits after it concluded that Employer had only established two
absences without notice, and Employer purportedly terminated Claimant’s
employment for three absences without notice. We disagree.
               Employer’s September 15, 2014 Discharge Letter to Claimant explained
that “after . . . consideration of the seriousness of [multiple violations of Employer’s
policy and 3 absences without notice], [Employer] has determined that in accordance
with the [P]olicy . . . [Claimant’s] employment [was] being terminated. . . .” R.R. at
28a. Claimant’s repeated violation of the absence without notice Policy constituted
willful misconduct, and justified Employer’s termination of Claimant’s employment
in accordance with Table 4.7.1.1 of the Policy. Although Employer proved only two
of three stated violations, the UCBR recognized that Table 4.7.1.1 of Employer’s

       11
           Although Claimant attempted to reach Employer’s safety director on that date, he did not
do so to notify Employer that he would be absent.
        12
           As support for Claimant’s position that his alleged work injury constituted good cause for
his failure to adhere to the Policy, Claimant notes that Employer’s Policy does not penalize
employees for absences due to work injuries and permits employees to provide medical
documentation to justify their absences. However, the Policy violation that resulted in Claimant’s
employment termination was not the absence itself, but his repeated failure to properly notify his
supervisor prior to those absences. Thus, whether Claimant’s absence was permissible does not
excuse Claimant’s failure to notify Employer prior to his absence in accordance with the Policy.
                                                 8
Policy provides that the second absence without notice will result in the issuance of
an employment termination letter. Accordingly, the UCBR properly concluded that
Claimant’s employment was terminated for willful misconduct.
            For all of the above reasons, the UCBR’s order is affirmed.


                                      ___________________________
                                      ANNE E. COVEY, Judge




                                         9
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Angelo M. Rodriguez,                 :
                       Petitioner    :
                                     :
                 v.                  :
                                     :
Unemployment Compensation            :
Board of Review,                     :   No. 50 C.D. 2015
                    Respondent       :


                                    ORDER

           AND NOW, this 14th day of June, 2016, the Unemployment
Compensation Board of Review’s December 30, 2014 Order is affirmed.


                                    ___________________________
                                    ANNE E. COVEY, Judge
