                IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Berkley E. Williams,                          :
                             Petitioner       :
                                              :
                     v.                       :
                                              :
Unemployment Compensation                     :
Board of Review,                              :    No. 1771 C.D. 2016
                    Respondent                :    Submitted: March 31, 2017


BEFORE:       HONORABLE P. KEVIN BROBSON, Judge
              HONORABLE ANNE E. COVEY, Judge
              HONORABLE JOSEPH M. COSGROVE, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE COVEY                                        FILED: August 8, 2017

              Berkley E. Williams (Claimant) petitions this Court for review of the
Unemployment Compensation (UC) Board of Review’s (UCBR) September 27, 2016
order affirming the Referee’s decision denying him UC benefits under Section 402(e)
of the UC Law (Law).1 There are two issues before the Court: (1) whether the UCBR
erred by finding that Temple University Hospital (Employer) met its burden of
proving that Claimant’s conduct constituted willful misconduct; and, (2) whether
Employer equally enforced its policy.2 After review, we affirm.
              Claimant was employed as a materials handler by Employer beginning
July 30, 1987.       Claimant’s employment was subject to a collective bargaining


       1
          Act of December 5, 1936, Second Ex.Sess., P.L. (1937) 2897, as amended, 43 P.S. §
802(e) (referring to willful misconduct).
        2
          In his brief, Claimant also challenged whether the UCBR’s findings of fact are supported
by substantial evidence. However, since that argument was not developed, it is waived. See Rapid
Pellet v. Unemployment Comp. Bd. of Review, 707 A.2d 636, 638 (Pa. Cmwlth. 1998) (“Arguments
not properly developed in a brief will be deemed waived by this Court.”).
agreement (CBA). Article 25 of the CBA specifies that Employer’s management has
exclusive control over its workforce and is authorized “to establish, revise and
maintain and enforce reasonable work standards and schedules, to make . . . and
enforce reasonable work rules” and to discipline bargaining unit members
accordingly. Reproduced Record (R.R.) at 195a. CBA Article 27 provides that
Employer “shall have the right to discharge, suspend or discipline any employee for
just cause.” R.R. at 196a.
             On August 20, 2003, Claimant read and agreed to uphold Employer’s
Service Excellence Standards (Standards), which required employees to, inter alia,
“[b]e responsible for [their] own actions.” R.R. at 8a; see also R.R. at 36a, 42a-43a.
Employees are also bound by Employer’s Administrative Policies and Procedures
contained in the employee handbook, which include its Corrective Action Discipline
Policy (Policy), which Claimant received on April 11, 2006. See R.R. at 7a, 9a-13a,
36a, 42a-43a.
             Employer’s Policy describes a progressive procedure whereby discipline
is initiated by discussion of a performance improvement plan, then progresses to a
written warning/action plan, then to a final written warning, to unpaid one-day
suspension and, ultimately, discharge. See R.R. at 10a-11a. The Policy further
expounds: “Discipline will remain active for twelve (12) months following the most
recent discipline and may progress to the next level if further discipline is warranted
within the twelve (12)[-]month period. . . .” R.R. at 11a. The Policy prescribes that
serious infractions such as “significant unprofessional conduct” (R.R. at 11a), and/or
“[g]ross neglect of duties” (R.R. at 12a) may result in immediate discharge. See R.R.
at 11a.
             On January 16, 2016, Claimant was scheduled to work from 2:30 p.m. to
11:00 p.m.      However, at approximately 10:15 p.m., Employer’s Materials
Management Operations Manager Joseph Julia (Julia) observed Claimant outside his
                                          2
work area playing video games on his cell phone. On January 22, 2016, based upon
Claimant’s disciplinary history and the Policy, Employer discharged him.
              Claimant applied for UC benefits. On January 24, 2016, the Erie UC
Service Center determined that Claimant was ineligible for UC benefits under Section
402(e) of the Law. Claimant appealed. A Referee hearing was held on April 13,
2016.       On April 20, 2016, the Referee affirmed the UC Service Center’s
determination, and denied Claimant UC benefits under Section 402(e) of the Law.
Claimant appealed to the UCBR. On June 24, 2016, the UCBR ordered a hearing to
“fully develop the record with regard to the merits of the case.” R.R. at 109a. A
UCBR hearing was held on September 7, 2016. On September 27, 2016, the UCBR
affirmed the Referee’s decision. Claimant appealed to this Court.3
              Initially,

              Section 402(e) of the Law provides that an employee is
              ineligible for [UC] 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 a[] [UC] 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 n.4 (Pa.
Cmwlth. 2000) (citation omitted). “If the employer satisfies its burden, the burden
shifts to the employee to show that he . . . had good cause for his . . . conduct. ‘A


        3
         “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).

                                                 3
claimant has good cause if his . . . actions are justifiable and reasonable under the
circumstances.’” Grand Sport Auto Body v. Unemployment Comp. Bd. of Review, 55
A.3d 186, 190 (Pa. Cmwlth. 2012) (citation omitted; quoting Docherty v.
Unemployment Comp. Bd. of Review, 898 A.2d 1205, 1208-09 (Pa. Cmwlth. 2006)).
Ultimately, “[t]he question of whether conduct rises to the level of willful misconduct
is a question of law to be determined by this Court.” Scott v. Unemployment Comp.
Bd. of Review, 105 A.3d 839, 844 (Pa. Cmwlth. 2014).
            Claimant first argues that the UCBR erred by finding that Employer met
its burden of proving that Claimant’s conduct constituted willful misconduct.
Claimant specifically contends that “Employer never produced any written work rule
that prohibited [Claimant] from being outside his work area and/or from playing a
game on his personal cell phone.” Claimant’s Br. at 12. However, the law is clear
that

            ‘[a]n employer need not have an established rule where
            the behavioral standard is obvious and the employee’s
            conduct is so inimical to the employer’s best interests
            that discharge is a natural result.’              Biggs v.
            Unemployment Comp. Bd. of Review, . . . 443 A.2d 1204,
            1206 n. 3 ([Pa. Cmwlth.] 1982). This Court has held that
            ‘[a] finding of willful misconduct does not hinge on an
            employee’s intent to wrong his employer; such a finding
            may be based on an employee’s conscious indifference to
            the duty owed his employer.’ Grigsby v. Unemployment
            Comp. Bd. of Review, . . . 447 A.2d 705, 707 ([Pa. Cmwlth.]
            1982).

Umedman v. Unemployment Comp. Bd. of Review, 52 A.3d 558, 562-63 (Pa. Cmwlth.
2012) (emphasis added).
            At the Referee hearing, Julia testified that, as of January 16, 2016,
Claimant’s employment record contained discipline reports including an April 20,
2015 final written warning (see R.R. at 6a), and an April 30, 2015 one-day


                                          4
suspension (see R.R. at 5a).4 R.R. at 43a. Despite that Claimant did not sign the
disciplinary reports, he acknowledged that he received them. See R.R. at 50a.
               Julia described that while he was on call on Saturday, January 16, 2016,
he stopped in at Employer’s facility to make sure things were running smoothly. See
R.R. at 46a. Julia recounted that, at approximately 10:15 p.m., when Claimant should
have been “[e]ither servicing floors [or] patient areas with linens, or in the linen
department [(Linens)],” he observed Claimant in Employer’s central supply area
(Central Supply) playing a video game on his cell phone for approximately 5 minutes.
R.R. at 40a; see also R.R. at 46a. He recollected that Claimant did not answer when
he asked Claimant why he was there, but rather Claimant “put his head back down
and went about playing on his phone.” R.R. at 40a; see also R.R. at 41a.
               Julia explained that when he approached Claimant about the incident on
Tuesday, January 19, 2016,5 Claimant told him that he was in Central Supply because
another employee had asked him for assistance in getting a sporting event on a
computer there.6 See R.R. at 40a, 44a-45a, 53a. Julia noted that since Claimant
reported taking his break at approximately 6:30 p.m. that night, Claimant was not on
a break when he was observed in Central Supply. See R.R. at 42a. Julia further
testified that material handlers, like Claimant, who finish their assigned work duties
before their shifts end are to notify supervisory staff and ask if there is anything else
to be done, which, to his knowledge, Claimant did not do on January 16, 2016. See
R.R. at 44a.



       4
          According to the record, Claimant’s discipline reports to that point included an August 5,
2011 written warning (see R.R. at 75a), a December 27, 2011 initial discussion (see R.R. at 76a), a
November 15, 2012 written warning (see R.R. at 74a), a June 6, 2013 final written warning (see
R.R. at 73a), and an August 26, 2013 one-day suspension (see R.R. at 72a). See R.R. at 48a.
        5
          Claimant worked Sunday, January 17, 2016, but was off Monday, January 18, 2016. See
R.R. at 53a.
        6
          The record reveals that it was not Employer’s computer. See R.R. at 40a.
                                                 5
              Julia acknowledged that there is a closed-circuit camera covering the
dirty linen chute room, from which Central Supply employees can monitor the room
during times when there is no material handling staff coverage from 11:00 p.m. until
7:00 a.m.7     See R.R. at 44a.        Julia recounted that, notwithstanding Claimant’s
potential ability to monitor his job from Central Supply on January 16, 2016,
Claimant admitted that he was not performing his job duties when Julia saw him on
January 16, 2016. See R.R. at 45a.
              Julia clarified that each year an employee goes without discipline, the
last disciplinary step gets cleared, and department supervisors have the discretion
when the next discipline occurs to either maintain the employee at that level or
progress him to the next level.8          See R.R. at 49a-50a.         Julia explained that he
suspended Claimant on January 19, 2016.9 See R.R. at 45a, 53a. On January 22,
2016, Julia issued a disciplinary report discharging Claimant for violating the
personal accountability portion of Employer’s Standards, and for “[f]ail[ing] to meet

       7
          Julia added that Linens has a similar monitor that employees can watch while they are on
the clock. See R.R. at 44a, 64a-65a.
        8
          Article 1, Section 1 of the CBA states: “All minor infractions on an employee’s record
shall be cleared after one year, provided that the one[]year shall be free of infractions.” R.R. at
107a, 195a. Neither the CBA nor the Policy define the term “minor infractions.” Id.; see also R.R.
at 136a.
        9
          We acknowledge Julia’s explanation that he had the discretion to terminate Claimant’s
employment as follows:

              [T]his [January 16, 2016] incident warrants the next step as one[-]day
              suspension. But it’s up to the discretion of the department[.] . . .
              [B]ecause it was over a year, I could keep him at the same level and
              not progressively discipline him. So what we chose to do, even
              though he was at suspension again, we cut him at the same level of
              final written warning April 2015.
R.R. at 50a; see also R.R. at 131a. However, since Claimant’s last infraction – a one-day
suspension – occurred on April 30, 2015, any further policy violation before April 30, 2016 could
result in termination of Claimant’s employment. Accordingly, Employer was authorized under the
Policy to discharge Claimant on January 19, 2016, rather than suspend him.


                                                6
performance standards” and “[n]eglect of duties” pursuant to the Policy. R.R. at 4a;
see also R.R. at 45a.
             Claimant acknowledged at the Referee hearing that he went to Central
Supply on January 16, 2016 at approximately 10:00 p.m. to assist a co-worker in
getting a sporting event on the co-worker’s computer and, after Claimant did so, he
“was just passing the time for a minute” playing a game on his cell phone since his
work “was caught up” and he could answer calls and his beeper, and fulfill his last
duty of his shift – monitoring the dirty linen chute – from that area. R.R. at 51a; see
also R.R. at 54a, 57a. Claimant further stated that Linens was only a “10 second
walk” from Central Supply (see R.R. at 56a). He admitted that Julia asked Claimant
a question (although he could not recall what Julia asked) and then watched Claimant
(for two minutes not five minutes) while he “played a little bit, closed the game down
and [] left.” R.R. at 53a. Claimant recollected that he returned to Linens and cleaned
out the chutes before the end of his shift. See R.R. at 54a, 56a.
             Claimant declared that he “never [] heard of any rule where you weren’t
allowed to go to another section at any particular time” (R.R. at 51a; see also R.R. at
55a-56a), nor has anyone told him that he was not allowed to play a game on his
phone (see R.R. at 57a). He claims that he has “[a]lmost daily” witnessed other
employees on their phones, listening to music, playing games, watching TV and
checking the Internet (R.R. at 57a; see also R.R. at 58a), and that “[t]he
understanding is that you’re allowed to use your cell phone at work . . . as long as you
have only one earphone in.” R.R. at 57a.
             Claimant asserted that he did not know why he was suspended, since “all
[he] was doing was just sitting there. [His] work was completed.” R.R. at 53a.
However, it is unclear whether Claimant told Julia, either when the incident occurred
on January 16, 2016 or when they met on January 19, 2016, that he had completed his
work before he left Linens and was on his phone.            See R.R. at 53a-54a, 63a.
                                           7
Claimant first testified that since the union delegate was present when he and Julia
met, “there’s no sense in trying to fight it.” See R.R. at 53a; see also R.R. at 66a.
Claimant later asserted: “I was under the assumption that [Julia] knew that I would
not leave my job or be sitting down unless I had finished all my assignments.” R.R.
at 54a. Thereafter, he maintained: “I believe that I explained it to [Julia].” R.R. at
54a; see also R.R. at 55a. Notwithstanding, Claimant agreed that he could have
helped his co-worker after his shift ended. He further testified:

             [Employer’s Representative (ET)] . . . [W]ould [you] agree
             with me that your work shift, and it was testified that you’re
             making $20 an hour – that’s what [Employer] is paying you
             to do your work -- that it’s a normal expectation for []
             Employer that until your shift ends, you’re getting paid for
             your time and that you should be performing work for
             the time you’re being paid? That’s a normal
             expectation, wouldn’t you think?
             [Claimant (C)] Yes.
             ET Okay. But in fact that night at 10:15 when [Julia] was
             observing you, you weren’t performing any work duties
             and you weren’t in the assigned work area where you
             were performing your duties earlier in your shift from 2:00
             in the afternoon, correct?
             C No.

R.R. at 64a (emphasis added). Finally, Claimant stated his understanding that if an
employee did not have any disciplinary actions against him for one year, “everything
. . . reverts back to zero[,]” rather than back to the last progressive step. R.R. at 65a.
             Based upon the evidence, the Referee concluded that Employer
established that Claimant’s conduct on January 16, 2016 was contrary to the type of
behavior an employer has the right to expect of an employee, and that Claimant did
not provide any reasonable justification therefor. See Referee Dec. at 3. However,
the law is well established that “the [UCBR] is the ultimate fact-finder in


                                             8
unemployment compensation matters and is empowered to resolve all conflicts in
evidence, witness credibility, and weight accorded the evidence.” Ductmate Indus.,
Inc. v. Unemployment Comp. Bd. of Review, 949 A.2d 338, 342 (Pa. Cmwlth. 2008).
Accordingly, having determined that additional facts were necessary to decide the
merits of this case, the UCBR ordered the September 7, 2016 hearing.
             At the September 7, 2016 UCBR hearing, Julia testified that Employer’s
policy prohibiting the use of cell phones to play games during work hours was
available to Claimant on the employee website, to which Claimant had access. See
R.R. at 123a, 128a. When asked: “[D]id you ever inform or indicate to [Claimant]
that once his work[ was] finished[,] he can do pretty much what he wants?” Julia
responded: “No, I don’t recall saying that.” R.R. at 167a. Julia recalled issuing
verbal warnings to employees, including Claimant, for using computers at work for
non-work purposes, and declared that the other employees did not repeat that
behavior thereafter. See R.R. at 137a-139a.
             Julia defined the phrase minor infraction used in the CBA as “something
that does not directly affect patient care,” such as when an employee is a little bit late,
or leaves a work area messy. R.R. at 136a; see also R.R. at 134a-135a. Julia
declared that since Claimant’s record was not clean for the year leading up to the
January 16, 2016 incident, and his prior infractions involved patient care and, thus,
were not minor, he was discharged in accordance with Employer’s Policy and the
CBA. See R.R. at 123a, 129a-131a, 135a-136a. Julia was not aware of Claimant
grieving or contesting his disciplinary level. See R.R. at 144a.
             Claimant reiterated at the UCBR hearing that the only cell phone
restriction of which he was aware was that employees use only one earpiece, so that
they could hear overhead pages. See R.R. at 160a. He also maintained that his
understanding, under the circumstances, was that as “long as your work is
completed[,] what you do in the meantime is your concern.” R.R. at 165a; see also
                                            9
R.R. at 166a. Claimant repeated that he did not raise the common practice of
employee cell phone use when Julia confronted him because it would not have
changed the outcome. See R.R. at 163a, 165a-166a.
            Based upon all of the evidence presented, the UCBR affirmed the
Referee’s decision denying Claimant UC benefits finding, in pertinent part:

            2. [Employer’s CBA] provides that all minor infractions on
            an employee’s record shall be cleared after one year
            provided that the one year shall be free of infractions.
            ....
            4. [Employer’s] policy prohibits employees from using
            [Employer’s] cell phones for personal use.
            5. [Claimant] was or should have been aware of the [CBA]
            and [Employer’s] cell phone policy.
            ....
            12. On June 7, 2013, [Claimant] received a final written
            warning for putting incorrectly[-]sized scrubs in the
            assigned slots, leaving a linen cart empty, and not properly
            filling two other carts.
            13. On August 26, 2013, [Claimant] received a one-day
            suspension for improperly loading the scrub machine.
            14. On April 20, 2015, [Claimant] received a final written
            warning for not picking up dirty linens and not supplying
            two locations with clean linens.
            15. [Claimant] did not receive a suspension because the
            August 26, 2013 one-day suspension and the June 7, 2013
            final written warning were cleared as it had been over one
            year since [Claimant] committed the minor infractions.
            16. On April 30, 2015, [Claimant] received a one-day
            suspension for improperly placing blankets on supply carts.
            17. On January 16, 2016, [Claimant] was scheduled to work
            from 2:30 p.m. to 11:00 p.m.


                                         10
           18. At approximately 10:15 p.m.[,] [Employer] discovered
           [Claimant] in [Central Supply] playing a video game on his
           cell phone instead of being in his assigned work area either
           supplying the patients with linen or working in [Linens].
           19. On January 22, 2016, [Claimant] was discharged for
           being out of his work area, on the phone, and playing a
           video game when he should have been working.
           20. [Claimant] admitted that he was not on break at the time
           that he was discovered being out of his work area, on the
           phone, and playing a video game.
           21. The employer cleared the 2013 suspension and final
           warning, but did not clear the 2011 initial discussion, the
           2011 written warning, and the 2012 written warning prior to
           [Claimant’s] discharge.
UCBR Dec. at 1-3. The UCBR reasoned:
           The [UCBR] resolves the conflicts in the testimony
           and/or evidence, in relevant part, in favor of [Employer]
           and finds [Employer’s] testimony and/or evidence to be
           credible.
           ....
           [Employer] has met [its] burden. On numerous occasions
           during his employment [Claimant] was disciplined for
           violating known and reasonable [Employer] policies by
           failing to perform and/or failing to properly perform his job
           duties.
           The incident which led directly to [Claimant’s] discharge
           occurred on January 16, 2016, when [Employer] discovered
           [Claimant] in [Central Supply], out of his assigned work
           area, playing a video game on his cell phone instead of
           performing his job duties.
           [Claimant] did not provide [Employer] or the [UCBR]
           any reasonable justification for why he was out of his area
           playing a video game on his cell phone instead of
           performing his job duties, especially in light of the fact that
           on numerous previous occasions [Claimant] was disciplined
           for failing to perform his job duties.


                                         11
              [Claimant’s] behavior on January 16, 2016, was not in
              [Employer’s] best interests and contrary to the type of
              behavior that an employer has the right to expect of an
              employee. The [UCBR] is constrained to decide that
              [Employer] has met its burden of proving that [Claimant]
              committed willful misconduct, thereby rendering himself
              ineligible for benefits in accordance with Section 402(e) of
              the Law.
UCBR Dec. at 3-4 (emphasis added).
              It is irrelevant whether the record contains evidence to
              support findings other than those made by the fact-finder;
              the critical inquiry is whether there is evidence to support
              the findings actually made. Where substantial evidence
              supports the [UCBR’s] findings, they are conclusive on
              appeal.

Ductmate Indus., Inc., 949 A.2d at 342 (citation omitted; emphasis added). This
Court has explained:

              Substantial evidence is relevant evidence upon which a
              reasonable mind could base a conclusion. In deciding
              whether there is substantial evidence to support the
              [UCBR’s] findings, this Court must examine the testimony
              in the light most favorable to the prevailing party, in this
              case, the [e]mployer, giving that party the benefit of any
              inferences which can logically and reasonably be drawn
              from the evidence.

Sanders v. Unemployment Comp. Bd. of Review, 739 A.2d 616, 618 (Pa. Cmwlth.
1999).
              In the instant case, after a thorough review of the record, with the
exception of Finding of Fact 4, substantial evidence supported the UCBR’s factual
findings.10 Specifically, it is undisputed that Claimant was out of his assigned

       10
           Finding of Fact 4 references employee use of Employer’s cell phones. However, the
record is clear, based on the testimony, that the references were to employees’ personal cell phone
use. See R.R. at 152a, 206a. Moreover, it is not evident whether Employer maintained a
documented cell phone use policy. Under the circumstances, Finding of Fact 4 is not supported by
substantial evidence and, therefore, must be stricken. However, since the UCBR did not decide this
case based on a rule violation, but rather upon behavior that an employer has the right to expect of
                                                12
work area socializing and playing video games on his cell phone during
scheduled work hours on January 16, 2016. This Court has held that “[p]oor work
performance reflecting an unwillingness to work to the best of one’s ability is
indicative of a disregard for the standard of conduct an employer has a right to
expect and may rise to the level of willful misconduct.” Gardner v. Unemployment
Comp. Bd. of Review, 454 A.2d 1208, 1209 (Pa. Cmwlth. 1983) (emphasis added).
“It is also clear that an employee who neglects assigned work, engages in personal
pursuits during working hours, and has received multiple warnings is guilty of
willful misconduct.” Astarb v. Unemployment Comp. Bd. of Review, 413 A.2d 761,
763 (Pa. Cmwlth. 1980) (emphasis added). This Court has specifically held that time
spent on non-work activities during work hours, including playing computer
games, “reflects an unwillingness to work to the best of one’s ability and
demonstrates a conscious disregard for the standards of behavior which an
employer has a right to expect from an employee.” See Hance v. Unemployment
Comp. Bd. of Review (Pa. Cmwlth. No. 1920 C.D. 2008, filed June 18, 2009), slip op.
at 8 (emphasis added).11 Because Claimant’s actions on January 16, 2016 were
clearly contrary to the standards of conduct Employer could expect from him,
Claimant’s conduct constituted willful misconduct.
              We acknowledge that “[t]he employee’s conduct will not constitute
willful misconduct if it was justifiable under the circumstances, since it cannot then
be considered to be in disregard of conduct the employer has a right to expect.”
Eisenhauer v. Unemployment Comp. Bd. of Review, 467 A.2d 650, 652 (Pa. Cmwlth.

an employee, Finding of Fact 4 was not a necessary finding and its absence does not impede
affirmance when the other findings are otherwise proper. See Sargent v. Unemployment Comp. Bd.
of Review, 630 A.2d 534, 536 (Pa. Cmwlth. 1993) (“[T]his finding is unsupported by the record and
must be stricken. . . . [H]owever, [] it is unnecessary to support the [UCBR’s] determination.”).
       11
          This Court’s unreported memorandum opinions may be cited “for [their] persuasive value,
but not as a binding precedent.” Section 414(a) of the Commonwealth Court’s Internal Operating
Procedures, 210 Pa. Code § 69.414(a). Hance is cited in this instance for its persuasive value.
                                               13
1983). However, in the instant matter, the UCBR deemed credible Julia’s testimony
that if Claimant finished his work before his shift concluded, he was to contact a
supervisor to inquire what else needed to be done. The UCBR did not find credible
Claimant’s conflicting testimony that he was permitted to socialize out of his area and
play video games on this cell phone during work hours as long as he felt his work
was finished.12 Accordingly, there is substantial evidence that the time Claimant
spent playing video games on his cell phone in Central Supply on January 16, 2016,
when he had a history of poor job performance and he did not contact management to
see what other work could be done, reflected Claimant’s unjustified disregard for
standards of behavior Employer expected from him.
              Because Employer met its burden of proving that “[Claimant’s] behavior
on January 16, 2016, was not in [Employer’s] best interests and contrary to the type
of behavior that an employer has the right to expect of an employee,” and Claimant
did not meet his burden of proving good cause, we hold the UCBR properly held that
Claimant was ineligible for UC benefits under Section 402(e) of the Law. UCBR
Dec. at 4.
              Claimant next contends that the UCBR erred by finding that Claimant’s
conduct amounted to willful misconduct because Employer did not equally enforce
its policy. Essentially, he asserts that Employer had no right to expect he would not
be playing on his cell phone outside his work area during work hours, when other
employees have done it without disciplinary action being taken against them. We
disagree.
              “We are well aware that a finding of willful misconduct cannot be
upheld where the employer has applied different standards of behavior to different


       12
          We do not find compelling Claimant’s argument that he was simply biding his time until
he could retire in July 2016, particularly when he was aware that he was a single disciplinary step
away from Employer terminating his employment.
                                                14
employees.” Sommers v. Unemployment Comp. Bd. of Review, 424 A.2d 619, 621
(Pa. Cmwlth. 1981). However, at the Referee hearing, Julia described that Employer
uniformly applies its Standards and the Policy and, thus, employees would be dealt
with differently for similar violations only if they were in different stages of their
individual progressive disciplinary process. See R.R. at 43a.
             Claimant asserted that he observed other employees during work hours
in areas where they were not assigned for non-work purposes several times per week,
but those employees were not disciplined or discharged. See R.R. at 57a. Claimant
also reported that he has witnessed other employees use their cell phones and even
Employer’s computers to access Internet websites to check wedding photos (at a
supervisor’s request), Facebook, movie sites and news for purposes unrelated to their
work, yet not face discipline for doing so. See R.R. at 58a.
             At the UCBR hearing, Claimant testified that he has observed
Employer’s Materials Handler Kevin Wright (Wright) checking his lottery numbers
and taking calls from bill collectors on his cell phone at work, and “almost daily”
watching YouTube and television in the waiting room. R.R. at 158a; see also R.R. at
157a-158a. He also claims to have seen Employer’s Materials Manager William
Vandermark (Vandermark) watch movies and music videos on Employer’s computer
during “every shift he works . . . the desk.” R.R. at 159a. Claimant declared that an
employee named Pam also listens to music on Employer’s computer while she works.
See R.R. at 159a. He recounted that another employee watches the news daily at 6:30
a.m. before she goes home. See R.R. at 160a. Claimant reported that approximately
seven Linen employees chipped in and purchased speakers “[s]o [they could] get
more . . . quality sound out of the computer off the [I]nternet.” R.R. at 159a; see also
R.R. at 160a. Claimant asserted that everyone in the department and Linens engage
in nonwork-related activities during work hours from time to time. See R.R. at 160a.
He contended that this behavior was done in the open, no attempts were made to hide
                                          15
it from management; and, in fact, Julia and Employer’s Materials Management
Supervisor Akeem Stoner (Stoner) witnessed it and did not tell employees to stop.
See R.R. at 161a, 166a.
            Julia admitted that although he has disciplined others for being outside
their work areas, Claimant is the only employee he has disciplined for being outside
his area playing games on his cell phone. See R.R. at 127a, 141a. He further
declared that neither Claimant nor anyone else has reported to him that employees are
either using their cell phones or are out of their work areas for non-work purposes,
and he was not aware that other employees were committing the infractions Claimant
alleged. See R.R. at 65a, 127a. Julia nevertheless reiterated that he treats all of his
employees fairly and in the same manner. See R.R. at 124a. Julia does not recall
Claimant informing him that he was unfairly disciplined, or of any employee
complaining to human resources or the union about such treatment. See R.R. at 124a.
            When asked whether employees are treated unfairly in terms of
discipline, Vandermark said: “Not really.” R.R. at 146a. Wright did not believe that
supervisors treat certain employees differently, and declared that Claimant has never
complained to him about differential treatment by management. See R.R. at 150a.
Stoner could not state that certain employees are permitted to get away with things
when others are not, and he could not recall Claimant ever complaining to him about
disparate treatment.      See R.R. at 153a.     Accordingly, Claimant’s witnesses,
Vandermark, Wright and Stoner, did not support Claimant’s disparate treatment
claim.
            Based upon the record evidence, the UCBR found:

            22. [Employer] has disciplined other employees for being
            out of their work area.
            23. [Claimant] was not subject to disparate treatment;
            employees that were at the same level of discipline were

                                          16
             disciplined in accordance with the same policies that were
             applied to [Claimant].

UCBR Dec. at 3. We agree that Claimant failed to establish that he was treated
differently than similarly-situated employees.       Specifically, Claimant failed to
demonstrate that his conduct on January 16, 2016 was simply part of the established
culture in Julia’s department, that Julia was aware of it, or that Julia treated Claimant
more harshly than others. In fact, Claimant did not produce any evidence of the
disciplinary status of other employees by which a comparison could be made. Under
the circumstances, since the UCBR’s findings were based on substantial record
evidence, they are conclusive on appeal and we will not disturb them. Ductmate
Indus., Inc. Because Claimant could not justify his January 16, 2016 actions based on
other employees’ engaging in similar conduct, the UCBR properly held that Claimant
was ineligible for UC benefits under Section 402(e) of the Law.
             Accordingly, where, as here, Employer met its burden, but “Claimant
did not meet his burden of proving either that his conduct was not contrary to
reasonable standards of behavior which [Employer] may expect or that the [standard]
was not uniformly enforced[,]” we affirm the UCBR’s order. Smith v. Unemployment
Comp. Bd. of Review, 508 A.2d 1281, 1283 (Pa. Cmwlth. 1986).


                                       ___________________________
                                       ANNE E. COVEY, Judge

Judge Cosgrove dissents.




                                           17
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Berkley E. Williams,                   :
                        Petitioner     :
                                       :
                  v.                   :
                                       :
Unemployment Compensation              :
Board of Review,                       :   No. 1771 C.D. 2016
                    Respondent         :



                                     ORDER

            AND NOW, this 8th day of August, 2017, the Unemployment
Compensation Board of Review’s September 27, 2016 order is affirmed.


                                     ___________________________
                                     ANNE E. COVEY, Judge
