            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Michael J. Baker,                             :
                            Petitioner        :
                                              :
                     v.                       :   No. 678 C.D. 2017
                                              :   Submitted: October 27, 2017
Unemployment Compensation                     :
Board of Review,                              :
                    Respondent                :



BEFORE:       HONORABLE RENÉE COHN JUBELIRER, Judge
              HONORABLE P. KEVIN BROBSON, Judge
              HONORABLE DAN PELLEGRINI, Senior Judge




OPINION NOT REPORTED


MEMORANDUM OPINION BY
JUDGE COHN JUBELIRER                              FILED: December 20, 2017


       Michael J. Baker (Claimant), pro se, petitions for review of the Order of the
Unemployment Compensation (UC) Board of Review (Board) affirming a UC
Referee’s (Referee) Decision finding Claimant ineligible for UC benefits pursuant
to Section 402(e) of the UC Law (Law)1 because he engaged in willful misconduct
related to his work. The Board also denied Claimant’s request for a remand to
supplement the record with additional evidence because Claimant failed to “assert
such evidence and witnesses were unavailable at the time of the hearing.” (Bd.

       1
         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 employee is ineligible for UC benefits if “his
unemployment is due to his discharge or temporary suspension from work for willful misconduct
connected with his work.” Id.
Order.) On appeal, Claimant argues that: (1) the Board erred in denying his request
for a remand to supplement the record with additional evidence and witnesses; (2)
the Board’s findings are not supported by substantial evidence; (3) the Board erred
in concluding that his actions constituted willful misconduct because Claimant did
not intentionally or willfully disregard Ryder Integrated Logistics Incorporated’s
(Employer) safety policies; and (4) he had good cause for his actions.2 Discerning
no error, we affirm.
      Claimant worked for Employer from April 25, 1989, until his discharge on
December 16, 2016; however, his last day of work before his discharge was
December 14, 2016. At the time of his discharge, Claimant was a warehouse
operator, the duties of which include performing maintenance within the warehouse,
which occasionally required that Claimant drive a cart-type vehicle through the
warehouse and move safety cones out of the travel path of automated guided vehicles
(AGVs). Claimant filed an internet claim for UC benefits, stating that he was
discharged for violating Employer’s work rule regarding risk-associated behavior
when he broke a sensor on an AGV while moving a safety cone. (Internet Initial
Claims, R. Item 2.) The Scranton UC Service Center found that Claimant was not
ineligible for benefits under Section 402(e) of the Law, concluding that Employer
did not meet its burden of proving that Claimant’s actions constituted willful
misconduct.
      Employer appealed to the Referee, asserting that Claimant’s “continued
violation of . . . [E]mployer’s known safety policies and standards, despite
progressive discipline, constitutes” willful misconduct. (Employer’s Petition for
Appeal, R. Item 8.) Employer stated that Claimant’s conduct was “not the result of

      2
          We have reordered Claimant’s arguments for ease of discussion.



                                               2
incompetence nor ignorance of . . . [E]mployer’s policies and expectations.” (Id.)3
A hearing on Employer’s appeal was held before the Referee on February 13, 2017.
(Notice of Hearing, R. Item 10.) Employer appeared with its Tax Consultant
Representative (Tax Consultant), one witness, Human Resources (HR) Specialist,
and an observer. Documentary evidence was also entered into evidence.4 Claimant
appeared on his own behalf.
       Following the hearing, the Referee made the following findings of fact:

       1. Beginning April 25, 1989, the claimant was employed by
          [Employer]. The most recent position was a warehouse operator.
          The last day of work was December 14, 2016.

       2. The employer has a safety policy requiring an employee to park the
          vehicle and exit it prior to removing a safety cone. The cone is to
          be stored away prior to continuing operation of the vehicle.

       3. Any three safety violations within a 24[-]month period results in
          termination.

       4. As of March 14, 2016, the employer issued the claimant three
          separate safety violations.

       5. Instead of termination, the employer placed the claimant on a last
          chance agreement.




       3
          Employer attached a letter of termination dated December 16, 2016, a return to work
notice and Last Chance Agreement dated March 28, 2016, a Violation and Risk Associated
Behavior Log, an Employee Counseling Notice, photographs, and Employer’s Risk Associated
Behavior and Corrective Action policy. (R. Item 8.)
        4
          Numerous photographs were entered into evidence, including one showing an AGV, a
cart-type vehicle similar to the one driven by Claimant, and the damaged sensor on the AGV. (See
Employer’s Exs. 1-4.) Two copies of Employer’s Risk Associated Behavior Employee
Acknowledgement were also entered into the record. The first copy was signed by Claimant on
January 6, 2013, and the second updated version was signed by Claimant on April 2, 2015.
(Employer’s Exs. 5-6.)


                                               3
        6. On December 14, 2016, the claimant picked up a cone, while still in
           the vehicle and began operating the vehicle while holding the cone
           outside of the vehicle.

        7. The cone damages [sic] a[n AGV] sensor causing $2200 in damage.

        8. On December 14, 2016, the employer suspended the claimant
           pending an investigation.

        9. On December 16, 2016, the employer discharged the claimant for
           the final safety incident violating the last chance agreement.

(Referee Decision, Findings of Fact (FOF) ¶¶ 1-9.) The Referee credited HR
Specialist’s testimony regarding Employer’s safety policy and the Last Chance
Agreement. (Id. at 2.) The Referee stated that Claimant’s job was in jeopardy due
to the Last Chance Agreement. (Id.) The Referee concluded that whether Claimant
was inside or outside the vehicle when he picked up the safety cone, his continued
operation of the vehicle while holding the cone outside the vehicle was improper,
which violated Employer’s safety policy and caused the damage to the AGV’s
sensor. (Id.) The Referee determined that Claimant did not provide any reason for
his improper operation of the vehicle. (Id.) Accordingly, the Referee reversed the
UC Service Center’s determination and concluded that Claimant was ineligible for
benefits under Section 402(e) of the Law.
        Claimant appealed to the Board, arguing that he had additional evidence and
witnesses that would establish he did not willfully disregard Employer’s safety
policies. (Claimant’s Petition for Appeal to the Board, R. Item 13.) Claimant
asserted that he has been “a good employee” of Employer for 27 years and has not
had any other issues with safety prior to the incidents leading up to his discharge.
(Id.)




                                          4
       The Board denied Claimant’s request for a remand to supplement the record,
noting that “[C]laimant d[id] not assert such evidence and witnesses were
unavailable at the time of the hearing.” (Bd. Order.) Reviewing the evidence
presented at the hearing, the Board concluded that the Referee’s Decision was proper
under the Law. The Board amended the Referee’s Finding of Fact No. 5 to read,
“Instead of termination, the employer placed the claimant on a last chance
agreement, under which the claimant could be discharged for violating a policy of
the employer within 24 months of the execution of the agreement.” (Id.) The Board
also made an additional finding that Claimant hit, and thereby damaged, the AGV’s
sensor when he picked up the safety cone. The Board credited “[E]mployer’s
testimony that the claimant admitted he did not exit the vehicle when picking up the
cone” and further concluded that Claimant did not establish good cause for his
actions. (Id.) Accordingly, the Board “adopt[ed] and incorporate[d] the Referee’s
remaining findings and conclusions” into its Order and affirmed. (Id.) Claimant
now petitions this Court for review of the Board’s Order.5

       5
         This Court’s scope of review is limited to determining whether constitutional rights were
violated, whether an error of law was committed, or whether necessary findings of fact are
supported by substantial evidence. Johns v. Unemployment Comp. Bd. of Review, 87 A.3d 1006,
1009 n.2 (Pa. Cmwlth. 2014). “Substantial evidence is such relevant evidence [that] a reasonable
mind might accept as adequate to support a conclusion.” Am. Gen. Life and Accident Ins. Co. v.
Unemployment Comp. Bd. of Review, 648 A.2d 1245, 1248 (Pa. Cmwlth. 1994). In determining
whether the Board’s findings are supported by substantial evidence, this Court must “view the
record in the light most favorable to the party that prevailed before the Board, and give that party
the benefit of all reasonable inferences that can be drawn from the evidence.” Big Mountain
Imaging v. Unemployment Comp. Bd. of Review, 48 A.3d 492, 494-95 (Pa. Cmwlth. 2012). The
Board’s findings are conclusive on appeal if the record, as a whole, contains substantial evidence
to support the findings. Mathis v. Unemployment Comp. Bd. of Review, 64 A.3d 293, 299 (Pa.
Cmwlth. 2013). “The fact that [a claimant] may have produced witnesses who gave a different
version of the events, or that [the claimant] might view the testimony differently than the Board,
is not grounds for reversal if substantial evidence supports the Board’s findings.” Tapco, Inc. v.
Unemployment Comp. Bd. of Review, 650 A.2d 1106, 1108-09 (Pa. Cmwlth. 1994). Moreover, it



                                                 5
       On appeal, Claimant first argues that the Board erred in denying his request
for a remand to supplement the record with additional evidence and witnesses.
Claimant asserts that he did not realize he needed to present such evidence at the
initial hearing before the Referee. Claimant contends, specifically, that: there is
union paperwork requesting his monthly safety audits, which would have shown
Claimant’s good safety record; he has witnesses whose testimony would prove he
did not act willfully; and he can produce measurements of the vehicle and safety
cones that would show he would have had to get out of his vehicle to retrieve the
safety cone.
       Under Section 504 of the Law, 43 P.S. § 824, “the Board has the discretion to
decide whether to grant a request for remand.” Fisher v. Unemployment Comp. Bd.
of Review, 696 A.2d 895, 897 (Pa. Cmwlth. 1997). Thus, this Court “will not reverse
a decision denying a request for remand absent an abuse of discretion.” Id. (citing
Flores v. Unemployment Comp. Bd. of Review, 686 A.2d 66, 75 (Pa. Cmwlth. 1996)).
“[A] remand hearing is generally granted to allow a party the opportunity to present
evidence not offered at the original hearing because it was not then available.” Id.
       A review of the record reveals that Claimant did not argue in his appeal and
request for remand to the Board that the additional evidence and witness testimony
he wanted to present were not available at the time of the hearing. Consequently,
the Board denied Claimant’s request for a remand on that basis. (Bd. Order.) We
find no abuse of discretion in the Board’s denial of Claimant’s request for a remand
to present evidence and witnesses that he could have presented at the initial hearing.



is well-settled that the Board is the ultimate factfinder in UC cases and is, thus, empowered to
make credibility determinations and resolve conflicts in the evidence presented. Curran v.
Unemployment Comp. Bd. of Review, 752 A.2d 938, 940 (Pa. Cmwlth. 2000).


                                               6
      Turning to the merits, we first consider Claimant’s argument that not all of
the Board’s factual findings are supported by substantial evidence.            Claimant
challenges Finding of Fact No. 2, in which the Board found that “[E]mployer has a
safety policy requiring an employee to park the vehicle and exit it prior to removing
a safety cone” and that the safety cone should be put away before continued
operation of the vehicle. (FOF ¶ 2.) Claimant argues that there is no evidence of
any written safety policy requiring an employee to park and exit a vehicle prior to
removing a safety cone and, therefore, this finding is not supported by the record.
      However, “[i]t is not necessary that an employer’s reasonable order or
directive be written in order for the Court to determine that an employee’s violation
thereof constitutes willful misconduct[.]” Graham v. Unemployment Comp. Bd. of
Review, 840 A.2d 1054, 1057 (Pa. Cmwlth. 2004). In this case, HR Specialist
credibly testified about the safety policy regarding the retrieval of safety cones,
which requires that employees who are working in an aisle in the warehouse must
park their vehicles in a designated safe haven, exit the vehicle, and retrieve the safety
cone while on foot. (Hr’g Tr. at 8.) HR Specialist further explained that all
employees are trained twice a year on the proper procedures for parking a vehicle in
a safe haven and other issues regarding vehicles. (Id. at 11.) Claimant admitted
that he was aware of Employer’s safety policy regarding the movement of safety
cones and that he did not follow Employer’s safety policy on December 14, 2016.
(Id. at 13-14.) Further, in response to the UC Service Center’s oral interview
question asking Claimant to provide a reason for his actions, Claimant responded
that moving safety cones is something he typically does, but “the only difference is
we usually get them on foot, but I did while driving the cart, I figured it wasn’t going
to hurt anything, I removed the cone.” (Record of Oral Interview, R. Item 5.)



                                           7
Because HR Specialist’s testimony and Claimant’s admission and response to the
UC Service Center constitute “relevant evidence [that] a reasonable mind might
accept as adequate to support [the] conclusion” that Employer has a safety policy
regarding the movement of safety cones, it constitutes substantial evidence to
support this finding. Am. Gen. Life and Accident Ins. Co. v. Unemployment Comp.
Bd. of Review, 648 A.2d 1245, 1248 (Pa. Cmwlth. 1994).
       Claimant also challenges Finding of Fact No. 6, in which the Board found that
Claimant picked up the safety cone while still in his vehicle “and began operating
the vehicle while holding the cone outside of the vehicle.” (FOF ¶ 6.) Claimant
argues there is no evidence establishing that he did not exit his vehicle prior to
picking up the safety cone because there were no witnesses to the incident and
Employer and the Referee just assumed he did not exit his vehicle. While Claimant
testified that he could not recall whether he remained on the vehicle or got off to
retrieve the safety cone that day, the Board found HR Specialist’s testimony that
Claimant admitted he did not exit the vehicle prior to picking up the safety cone to
be more credible, which it was empowered to do. (Bd. Order; Hr’g Tr. at 7-8, 12);
see Curran v. Unemployment Comp. Bd. of Review, 752 A.2d 938, 940 (Pa. Cmwlth.
2000). Moreover, Claimant admitted to doing just this in his oral interview with the
UC Service Center. Because HR Specialist’s testimony and Claimant’s admission
constitute “relevant evidence [that] a reasonable mind might accept as adequate to
support [the] conclusion” that Claimant did not exit the vehicle prior to picking up
the safety cone, there is substantial evidence to support this finding. Am. Gen. Life,
648 A.2d at 1248.6

       6
        Although Claimant includes Finding of Fact No. 7 in the list of findings he is challenging,
he does not dispute that the damages were $2,200. Rather, Claimant explains that he was not



                                                8
         We next consider Claimant’s argument that the Board erred, generally, in
concluding that his actions in violating Employer’s safety policy regarding the
movement of safety cones constituted willful misconduct under Section 402(e) of
the Law. Whether an employee’s actions constitute willful misconduct is a question
of law reviewable by this Court. Reading Area Water Auth. v. Unemployment Comp.
Bd. of Review, 137 A.3d 658, 661 (Pa. Cmwlth. 2016). Section 402(e) of the Law
provides, in pertinent part, that “[a]n 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.” 43 P.S. §
802(e). While the Law does not define “willful misconduct,” our Court has defined
it as:

         (1) a wanton or willful disregard for an employer’s interests; (2) a
         deliberate violation of an employer’s rules; (3) a disregard for standards
         of behavior which an employer can rightfully expect of an employee;
         or (4) negligence indicating an intentional disregard of the employer’s
         interest or an employee’s duties or obligations.

Phila. Parking Auth. v. Unemployment Comp. Bd. of Review, 1 A.3d 965, 968 (Pa.
Cmwlth. 2010). The employer bears the burden of proving a claimant’s willful
misconduct. Spirnak v. Unemployment Comp. Bd. of Review, 557 A.2d 451, 453
(Pa. Cmwlth. 1989). Where an employer alleges willful misconduct based on a
claimant’s violation of a work rule or policy, “the employer must prove the existence
of the rule, the reasonableness of the rule, and” that the claimant violated the rule.
Ellis v. Unemployment Comp. Bd. of Review, 59 A.3d 1159, 1162 (Pa. Cmwlth.

trying to break the sensor and that part of his job is to keep production moving in the warehouse.
(Claimant’s Br. at 8.) Even if Claimant did challenge Finding of Fact No. 7, there is substantial
evidence to support that finding. HR Specialist testified that the sensor cost $2,200 to repair,
Claimant acknowledged that was the correct amount of the damage he caused, and Claimant
testified that he was not responsible for paying for the damage. (Hr’g Tr. at 7, 13.)


                                                9
2013). If an employer makes a showing of willful misconduct, the burden shifts to
the claimant to establish good cause for his or her actions. Phila. Parking Auth., 1
A.3d at 968. Whether a claimant has good cause for his or her conduct is a question
of law subject to our review and must be viewed in light of all of the attendant
circumstances, “including the reasons for his or her noncompliance with the
employer’s directives.” Id.; see also Docherty v. Unemployment Comp. Bd. of
Review, 898 A.2d 1205, 1208-09 (Pa. Cmwlth. 2006). “A claimant has good cause
if his or her actions are justifiable and reasonable under the circumstances.”
Docherty, 898 A.2d at 1208-09.
       As previously stated above, Employer established it has a safety policy
regarding the retrieval of safety cones. (FOF ¶ 2; Hr’g Tr. at 8, 11.) Employer also
has a policy that three safety violations in a rolling 24-month period would result in
termination, and that, in Claimant’s situation, any violation of Employer’s policies
within 24 months of the issuance of the Last Chance Agreement7 would result in
immediate termination. (FOF ¶¶ 3, 5 (as amended by the Board); Hr’g Tr. at 3-4, 8-
9.) Claimant admitted that he was aware of Employer’s specific safety policy
regarding the movement of safety cones and that he did not follow Employer’s safety
policy on December 14, 2016. (FOF ¶ 6; Board Order; Hr’g Tr. at 7-8, 13-14.) HR
Specialist also testified that Claimant “admitted he did not exit the vehicle when


       7
          In her testimony, HR Specialist identified Claimant’s three prior write-ups for safety
violations, which occurred in February 2015, January 2016, and March 2016, as triggering the
issuance of the Last Chance Agreement. Rather than terminating Claimant after the March 2016
incident, Employer and Claimant’s union entered into the Last Chance Agreement in an effort to
avoid arbitration and to bring Claimant back to work. The Last Chance Agreement states that
Claimant’s employment status is on a “last chance” basis and that “[a] violation of [Employer]’s
policies and procedures, especially as related to safety, within 24 months from the date of this
letter will result in immediate termination.” (Employer Letter and Last Chance Agreement, R.
Item 8; Hr’g Tr. at 2.)


                                              10
picking up the cone.” (Bd. Order; Hr’g Tr. at 8, 11.) Such testimony supports the
conclusion that Claimant violated Employer’s safety policy. In turn, because this
violation of Employer’s safety policy occurred within 24 months of the issuance of
the Last Chance Agreement, the terms of which Claimant indisputably was aware, it
resulted in Claimant’s violation of that Agreement and his discharge. (FOF ¶¶ 4-9;
Hr’g Tr. at 3-4, 7-8, 11.) Thus, Employer met its burden of proving that Claimant
violated a known work rule thereby engaging in willful misconduct.
      Claimant argues, however, that his actions do not constitute willful
misconduct because he did not intentionally or willfully disregard Employer’s safety
policy. We disagree. Despite his arguments to the contrary, “Claimant knew of [and
admitted to] the existence of the [safety policy], specifically failed to follow it by
[removing a safety cone] without [first parking and exiting the vehicle] and, as a
result, hit the [sensor on an AGV, thus causing damage to the sensor,]” and this
failure constitutes willful misconduct. Heitczman v. Unemployment Comp. Bd. of
Review, 638 A.2d 461, 464 (Pa. Cmwlth. 1994) (holding that the claimant’s violation
of a known work rule that required drivers to walk around their truck before
reversing the truck, which resulted in the claimant’s truck hitting a light standard
and causing damage to the truck and the light standard, constituted willful
misconduct); (see also Hr’g Tr. at 13-14).        Claimant’s conduct here was not
inadvertent, “but [wa]s more akin to disobedience of a direct instruction.” Id. at 464.
      We also agree with the Board that Claimant has not established good cause
for his refusal to comply with Employer’s known safety policy. Claimant attempts
to justify his actions by asserting that part of his job is to keep production moving in
the warehouse. However, as the Board notes in its brief, Claimant did not testify to
this at the hearing, and further, “trying to save a few seconds of time is not good



                                          11
cause to ignore a rule in place to protect the safety of employees.” (Bd.’s Br. at 11.)
Therefore, because Claimant knowingly violated Employer’s safety policy and the
Last Chance Agreement, and because Claimant has not established good cause for
violating that policy, the Board did not err in finding Claimant ineligible for benefits
pursuant to Section 402(e) of the Law.
      Accordingly, the Board’s Order is affirmed.




                                         _____________________________________
                                         RENÉE COHN JUBELIRER, Judge




                                          12
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Michael J. Baker,                        :
                         Petitioner      :
                                         :
                    v.                   :   No. 678 C.D. 2017
                                         :
Unemployment Compensation                :
Board of Review,                         :
                    Respondent           :


                                      ORDER


      NOW, December 20, 2017, the Order of the Unemployment Compensation
Board of Review, entered in the above-captioned matter, is hereby AFFIRMED.




                                       _____________________________________
                                       RENÉE COHN JUBELIRER, Judge
