                   IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Justin Fishbein,                               :
                      Petitioner               :
                                               :   No. 536 C.D. 2017
              v.                               :
                                               :   Submitted: August 25, 2017
Unemployment Compensation                      :
Board of Review,                               :
                 Respondent                    :


BEFORE:       HONORABLE RENÉE COHN JUBELIRER, Judge
              HONORABLE PATRICIA A. McCULLOUGH, Judge
              HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE McCULLOUGH                                                 FILED: October 27, 2017


              Justin Fishbein (Claimant) petitions, pro se, for review of the March 15,
2017 order of the Unemployment Compensation Board of Review (Board), which
affirmed a referee’s decision and denied him benefits under section 402(e) of
Pennsylvania’s Unemployment Compensation Law (Law).1


                               Facts and Procedural History
              Claimant was employed by the Pennsylvania Turnpike Commission
(Employer) as a full-time Clerk 3 Audit from August 15, 2012, through August 18,


       1
         Section 402(e) of the Law, Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897,
as amended, 43 P.S. §802(e). Section 402(e) provides that “an employe shall be ineligible for
compensation for any week . . . [i]n which his unemployment is due to his discharge or temporary
suspension from work for willful misconduct connected with his work, irrespective of whether or not
such work is ‘employment’ as defined in this act.” 43 P.S. §802(e).
2016. (Referee’s Finding of Fact (F.F.) No. 1; Notes of Transcript (N.T.) at 9.)
Claimant is a member of Teamsters Local 77 Central Office Bargaining Unit (Union).
(Claimant’s brief at 2.) As a member of the Union, Claimant’s employment with
Employer was governed by a collective bargaining agreement (CBA). (F.F. No. 2.)
             In October 2015, Employer’s Manager of Labor Relations, Pat Caro
(Manager or Caro), met with Claimant to discuss numerous emails that Claimant sent
daily to other employees that were upsetting to both the Union and Employer. (F.F.
No. 3.) While Claimant refrained from sending such emails for several months, the
emails began again in May 2016, after Claimant was passed over for a promotion and
denied out-of-class pay. (F.F. No. 4.) Caro met with Claimant a second time on May
5, 2016, to discuss those emails. (F.F. No. 5.)
             After receiving a tip box complaint from Claimant on May 16, 2016, the
Chief Compliance Officer, Ray Morrow (CCO or Morrow), scheduled a meeting with
Claimant on May 17, 2016. (F.F. No. 6.) Claimant continued to send emails to Morrow
on May 17, 2016, many of which were sent during non-working hours. (F.F. No. 7.)
At the May 17 meeting, Claimant became “erratic, confrontational, aggressive and
loud.” (F.F. No. 9.) Because Morrow became loud in response, his assistant called the
Pennsylvania State Police, who responded to the incident. (F.F. Nos. 10-11.)
             Employer met with Claimant on May 23, 2016, and gave him a verbal
warning. (F.F. No. 12.) Upon the request of Employer, Claimant underwent a fitness
for duty examination and completed the recommended treatment during a leave of
absence. (F.F. Nos. 13-14.)
             Claimant returned to work on June 15, 2016. (F.F. No. 15.) On that same
day, Claimant’s supervisor, Brian Rotheram (supervisor or Rotheram), sent an email
to the employees under his supervision, including Claimant, which provided a phone
number and instructions to notify Rotheram of an absence from work. (F.F. No. 16.)


                                           2
             Claimant’s regular work hours ran from 7:30 a.m. to 3:30 p.m. (F.F. No.
17.) On July 29, 2016, Claimant sent a text message to his supervisor at 7:51 a.m. to
notify him that he would be arriving at work one hour late. (F.F. No. 18.) Claimant
sent a text message to his supervisor again on August 3, 2016, at 8:18 a.m., to notify
him that he would arrive at work at 9:30 a.m. (F.F. No. 19.) Rotheram responded,
stating, “Ok thanks. In the future if you are going to be late please let me know [before]
your start time so I’m not wondering where you are.” (F.F. No. 20.) At 9:53 a.m., after
being unable to locate Claimant, Rotheram sent a second text message to Claimant to
find out where he was. (F.F. No. 21.) Claimant responded to Rotheram via text at 9:59
a.m., telling him that he notified the union steward, Paul, that he would not be into
work that day. (F.F. Nos. 22-23.) On August 4, 2016, at 7:31 a.m., Claimant again
texted his supervisor to tell him that he would be using leave time to take the day off.
(F.F. No. 24.)
             Claimant received a discipline letter from the CCO, on behalf of his
supervisor, on August 11, 2016. (F.F. No. 25.) Rotheram was on vacation from August
11 through August 18, 2016. (F.F. No. 26.) In response to the letter, Claimant
discussed the filing of a grievance with Caro, who provided him with the necessary
information, but advised him to wait to file the grievance until his supervisor returned
from vacation and could discuss the matter. (F.F. No. 27.)
             Meanwhile, on August 17, 2016, Claimant sent five text messages to
Rotheram between the hours of 4:34 p.m. and 6:17 p.m. (F.F. Nos. 28-29.) Because
he felt harassed, Rotheram spoke to Caro. Upon Caro’s advice, Rotheram sent the
following text message to Claimant at 6:17 p.m.: “Please cease and desist any further
texts during non-working hours immediately unless you’re informing me you won’t be
at work by your start time or you need the day off. Any further texts will be considered
harassment.” (F.F. No. 31; N.T. at 14.) In response, at 6:49 p.m., Claimant texted


                                            3
Rotheram, “And [t]he same instruction back at you Brian. I am requesting Mr. Paul
Morrison set up a meeting with Labor Relations to transfer me out immediately.” (F.F.
No. 32.)
               The next day, on August 18, 2016, Employer terminated Claimant for
“continued, repeated text messages to employees which was a violation of Article 7,
Section 4 of the [CBA], pertaining to substantial interference with an individual’s work
or performance; or creation of an intimidating, hostile or offensive working
environment.” (F.F. No. 33; N.T. at 8-9.)
               Claimant filed an initial claim for unemployment compensation benefits
on August 19, 2016. (Reproduced Record (R.R.) at 2.) On September 23, 2016, the
local service center denied Claimant benefits under section 402(e) of the Law. (R.R.
at 6.)
               Claimant appealed, and the matter was assigned to a referee. After a
hearing on November 2, 2016, the referee affirmed the decision of the local service
center. (R.R. at 20.) Claimant appealed to the Board, which also concluded that
Claimant was ineligible for benefits under section 402(e) of the Law. (R.R. at 24.)
Claimant filed a timely appeal to this Court.2
               On appeal,3 Claimant argues that: (1) the Board erred in determining that
he knowingly violated a work rule and engaged in willful misconduct in violation of
Article 7, Section 4 of the CBA; (2) the Board erred in affirming the referee’s decision
dated November 7, 2016, because there was no substantial evidence of record to

         2
          Before his appeal to this Court, Claimant filed a request for reconsideration of the Board’s
decision. (R.R. at 25.) The Board denied that request on April 3, 2017. (R.R. 29.) Because Claimant
filed his petition for review on April 10, 2017, his appeal from the Board’s March 15, 2017 decision
on the merits was timely filed.
        3
          On appeal, our scope of review is limited to determining whether constitutional rights have
been violated, whether an error of law has been committed, and whether findings of fact are supported
by substantial evidence. Torres-Bobe v. Unemployment Compensation Board of Review, 125 A.3d
122, 126 n.3 (Pa. Cmwlth. 2015).

                                                  4
support a determination of willful misconduct; (3) Claimant did not engage in unlawful
discrimination or discriminatory harassment and was deprived of an impartial Equal
Employment Opportunity Commission investigation prior to discharge; and (4)
Claimant’s termination violated the progressive disciplinary system provided for in
Article 25, Section 1 of the CBA. (Petitioner’s brief at 14.)


                                 Willful Misconduct
             Claimant argues that the Board erred in its determination of “willful
misconduct” because: (1) he had no knowledge of the work rule set forth in Article 7,
Section 4 of the CBA; and (2) no substantial evidence of record exists to support a
finding of “willful misconduct.” Both arguments must fail.
             Section 402(e) of the Law provides that “an employe shall be ineligible
for compensation for any week . . . [i]n which his unemployment is due to his discharge
or temporary suspension from work for willful misconduct connected with his work,
irrespective of whether or not such work is ‘employment’ as defined in this [Law].” 43
P.S. §802(e). We have defined “willful misconduct” as: “(1) wanton and willful
disregard of an employer’s interests; (2) deliberate violation of rules; (3) disregard of
the standards of behavior which an employer can rightfully expect from an employee;
or, (4) negligence showing an intentional disregard of the employer’s interests or the
employee’s duties and obligations.” Johns v. Unemployment Compensation Board of
Review, 87 A.3d 1006, 1009 (Pa. Cmwlth. 2014). The initial burden is on the employer
to demonstrate the existence of a work rule, Yost v. Unemployment Compensation
Board of Review, 42 A.3d 1158, 1162 (Pa. Cmwlth. 2012), and to establish that the
claimant engaged in willful misconduct in violation of that rule. Johns, 87 A.3d at
1010. Once the employer meets its burden, the burden then shifts to the claimant to
establish that the violation occurred for good cause. Yost, 42 A.3d at 1162.


                                           5
            “Whether a claimant’s actions constitute willful misconduct is a question
of law fully reviewable on appeal.”      Johns, 87 A.3d at 1010.       However, in
unemployment cases, the Board is the ultimate fact finder. Gioia v. Unemployment
Compensation Board of Review, 661 A.2d 34, 36 (Pa. Cmwlth. 1995). “Findings of
fact are conclusive upon review provided that the record, taken as a whole, contains
substantial evidence to support the findings.” Walsh v. Unemployment Compensation
Board of Review, 943 A.2d 363, 368 (Pa. Cmwlth. 2008).
            In this case, Claimant was denied unemployment compensation benefits
based upon his willful misconduct in violation of Article 7, Section 4 of the CBA,
which provides:


            The [Pennsylvania Turnpike] Commission and the Union
            agree that all employees have a right to a work environment
            free of discriminatory harassment including, but not limited
            to, sexual, racial, and ethnic harassment and other
            discriminatory harassment based on an employee’s legally
            protected status under federal law and/or the law of the
            Commonwealth of Pennsylvania.

            Discriminatory harassment is conduct that has as its purpose
            or effect:
            - Substantial interference with an individual’s work or
               performance; or
            - Creation of an intimidating, hostile or offensive working
               environment.

            Discriminatory harassment encompasses a wide range of
            unwanted behavior, including:
            - Verbal harassment or abuse (even in the guise of
               “humor”);
            - Subtle pressure for sexual activity;
            - Racially, ethnically, or sexually directed remarks about a
               worker’s clothing, body, appearance or sexual activities;
            - Unwanted touching, patting, or pinching;
            - Leering or ogling of a worker’s body;

                                         6
              - Demanding sexual favors accompanied by implied or
                overt threats; or
              - Physical assault.

              The [Pennsylvania Turnpike] Commission and the Union
              strongly condemn discriminatory harassment of any nature
              in the workplace. An employee alleging a claim under this
              Section shall have recourse to the grievance procedure.
              Notwithstanding Article 25, an employee charged with an
              offense under this section shall be placed in the progressive
              disciplinary system in the step commensurate with the
              seriousness of the offense for which he is charged.

(N.T. at E-1.)
              Claimant first contends that he had no knowledge of this work rule and,
therefore, could not have deliberately violated it. This argument is without merit. We
have previously found that “an employee is charged with constructive notice of [a] rule
or policy [if] it could have been discovered by due diligence.”               Gibson v.
Unemployment Compensation Board of Review, 760 A.2d 492, 495 (Pa. Cmwlth.
2000). Here, Claimant is a member of the Union and admits that the CBA governed
the terms of his employment with Employer. As a union member and an employee,
Claimant is presumed to have constructive knowledge of the provisions of his CBA.
See, e.g., Shapiro v. Cook United, Inc., 762 F.2d 49, 51 (6th Cir. 1985) (finding that an
employee is charged with constructive knowledge of his own collective bargaining
agreement’s expressed terms and his ignorance of such does not constitute due
diligence).
              Claimant next argues that the record does not contain substantial and
credible evidence to support a determination of “willful misconduct.” As explained
above, the initial burden is on Employer to demonstrate the existence of a work rule
and to demonstrate that Claimant willfully violated that rule. Here, we find that
Employer met that burden, as the record is replete with credible evidence to show that


                                           7
Claimant was aware of his misconduct, yet, after multiple warnings, continued to
engage in the same violative behavior.
            At a hearing before the referee on November 2, 2016, both Claimant and
Employer had the opportunity to present witnesses and testimony to support their
respective positions. While Employer presented the testimony of three witnesses,
Claimant chose not to present testimony to the referee. Employer first presented the
testimony of the Manager, Pat Caro. Caro testified that he, along with a Union
representative, met with Claimant in October 2015, to discuss Claimant’s daily emails
regarding the conduct of other employees. (N.T. at 10.) Caro testified that Claimant
seemed to understand the discussion and that such emails ceased until May 2016, at
which time Claimant began sending numerous emails regarding the fact that he was
passed up for a promotion and denied out-of-class pay. Id. Caro then explained that
he met with Claimant again on May 5, 2016, to provide the “friendly advice” that the
emails alleging a “rigged” promotional process needed to stop. Id. Because Claimant
continued to send emails of a similar nature, a third meeting was held on May 23, 2015.
(N.T. at 11.) The Human Resources Director and Chief Operating Officer of Employer
were present at the May 23 meeting, and Claimant was directed to complete a fitness
for duty evaluation. Id. Finally, Caro testified that he spoke to Claimant on August
12, 2016, regarding Claimant’s receipt of a written discipline letter, at which time he
advised Claimant to speak to his supervisor about filing a grievance. (N.T. at 12.)
            Next, Employer presented the testimony of Ray Morrow, its CCO.
Morrow testified that he received a tip box complaint from Claimant on May 16, 2016,
regarding alleged impropriety in the promotional process. (N.T. at 24.) When he met
with Claimant to discuss the complaint, Claimant became loud and aggressive. (N.T.
at 25.) Morrow verified that he fully reviewed Claimant’s tip box complaint and
determined there was no merit to Claimant’s allegations. (N.T. at 26.) Morrow


                                          8
testified that he met with Claimant again on August 11, 2016, when he presented
Claimant with a written warning letter regarding disciplinary issues. (N.T. at 27.)
             Finally, Employer presented the testimony of Brian Rotheram, Claimant’s
supervisor. Rotheram testified that he received numerous text messages from Claimant
outside of his working hours and regarding subjects unrelated to his attendance at work.
Rotheram testified that Claimant was expected to work from 7:30 a.m. to 3:30 p.m.
each day. (N.T. at 32.) He testified that, on July 29, 2016, he received a text message
from Claimant informing him that he would be late for work that day. Id. Rotheram
testified that he received a similar text on August 3, 2016 at 8:18 a.m., and that he
responded by asking Claimant to notify him prior to 7:30 a.m. if he would be late for
work on a given day. Id. On that same day, two and a half hours after his shift started,
Claimant again texted Rotheram that he would not be in that day due to an illness and
that he had previously notified his union steward of the same. (N.T. at 33.) Rotheram
then testified that, on August 4, 2016, he received a text from Claimant at 7:31 a.m. to
tell him that he would be using leave time to take the day off. Id.
             Rotheram then testified to the final events preceding Claimant’s
termination. On August 17, 2016, Claimant sent Rotheram, who was on vacation, a
series of text messages regarding his desire to file a grievance. (N.T. at 35.) Rotheram
testified that he sought the advice of the Manager, and, following that advice, sent a
text message to Claimant directing him to cease and desist from sending any text
messages during non-working hours unless those texts were directly related to
Claimant’s attendance at work, and informing Claimant that any further texts would be
considered harassment. Id. After Claimant sent yet another text to Rotheram that
evening, he was ultimately issued a termination letter on August 18, 2016.
             The referee and the Board, in adopting the findings of fact of the referee,
found Employer’s testimony to be credible. As substantial evidence exists to support


                                           9
those findings, the referee’s findings of fact are conclusive. Thus, we find that
Employer has clearly met its burden of establishing the “willful misconduct” of
Claimant.
            The burden then shifts to Claimant to show that he had good cause for the
violation. Because Claimant presented no evidence of record to suggest that he had
good cause to violate Employer’s work rule, we cannot find that he met his burden.


                   Employer’s Progressive Disciplinary Process
            Claimant also argues that the Board erred in finding “willful misconduct”
because the Employer did not follow its progressive disciplinary procedure provided
for in Article 25, Section 1 of the CBA. Employer counters that Claimant waived this
argument because Article 25, Section 1 was not included in the record before the
referee. The Board agreed with Employer, stating, “[C]laimant has included extra-
record evidence in this appeal to the Board which the Board cannot consider on
appeal.” (Board’s op. at 1.) We agree.
            The record before us does not properly include Article 25, Section 1 of the
CBA. Although Claimant attached the language of this provision to his petition for
review, we cannot consider it in our review, as it is not part of the certified record
before us on appeal. We explained in McKenna v. Pennsylvania State Horse Racing
Commission, 475 A.2d 505 (Pa. Cmwlth. 1984), that “we may not . . . consider auxiliary
information appended to a brief which is not part of the certified record, and,
furthermore, we must decide the issues based upon the record before us.” Id. at 507;
see also Croft v. Unemployment Compensation Board of Review, 662 A.2d 24, 28 (Pa.
Cmwlth. 1995) (citing McKenna).




                                         10
                         Admissibility of Article 7, Section 4
             Similarly, Claimant also attempts to argue that the referee erred in
overruling his objection to the admissibility of Article 7, Section 4 of the CBA. At the
hearing before the referee, Employer offered this excerpt of the CBA into evidence.
(N.T. at 4-5.) Claimant objected on the bases that said exhibit was neither the entirety
of the CBA, nor the entirety of Article 7, and that it was not evident that the excerpt
came from the CBA in effect between the Employer and Claimant. (N.T. at 5, 15-16.)
In response, Caro testified that although two collective bargaining agreements exist—
a field agreement and a central office agreement—the relevant language in each is
identical. Caro credibly testified that the copy of the entirety of Article 7 that he
presented at the hearing is the actual language of the CBA relevant to this case. (N.T.
at 15-17.) Based upon the Caro’s testimony, we find Claimant’s argument with respect
to the admissibility of Article 7, Section 4 to be without merit.
             Importantly, we note that Claimant himself could have moved to enter the
full CBA into evidence had he been concerned with either the accuracy of the copy of
Article 7, Section 4 presented by Employer, or the fact that the entire CBA was not
before the referee for consideration.


                     Discrimination against a “Protected Class”
             Finally, Claimant argues that he did not violate Article 7, Section 4 of the
CBA because he did not discriminate against a protected class. Employer asserts that
Claimant waived this argument because he failed to raise it before either the referee or
the Board. We agree with Employer.
             It is well-settled that issues not raised before the referee or Board are
“waived for purposes of appeal, and [will not] be addressed for the first time by this
Court [on] appeal.” Chapman v. Unemployment Compensation Board of Review, 20


                                           11
A.3d 603, 611 (Pa. Cmwlth. 2011). Furthermore, Claimant failed to comply with Pa.
R.A.P. 2117(c) by setting forth in his brief the manner in which this issue was raised
or preserved in the prior proceedings. Pa. R.A.P. 2117; see Chapman, 20 A.3d at 611.


                                     Conclusion
             Because substantial evidence supports the Board’s conclusion that
Claimant engaged in willful misconduct in violation of Article 7, Section 4 of the CBA,
and Claimant failed to establish good cause for that violation, the Board did not err in
affirming the referee’s decision and holding that Claimant was ineligible for
unemployment compensation benefits under section 402(e) of the Law.
             Accordingly, the Board’s order is affirmed.




                                           ________________________________
                                           PATRICIA A. McCULLOUGH, Judge




                                          12
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Justin Fishbein,                   :
                   Petitioner      :
                                   :    No. 536 C.D. 2017
             v.                    :
                                   :
Unemployment Compensation          :
Board of Review,                   :
                 Respondent        :


                                ORDER


             AND NOW, this 27th day of October, 2017, the order of the
Unemployment Compensation Board of Review dated March 15, 2017, is hereby
affirmed.



                                       ________________________________
                                       PATRICIA A. McCULLOUGH, Judge
