Brady v. Unemployment Compensation Board of Review , 727 A.2d 1199 ( 1999 )

NARICK, Senior Judge.

The issue on appeal is whether the decision of the Unemployment Compensation Board of Review (Board) denying benefits to Scott B. Brady (Brady) due to his alleged willful misconduct for failure to report to work is supported by substantial evidence and is in accordance with the law. Because Brady did not establish he had good cause for missing work, the Board’s decision is affirmed.

The relevant facts in this case are as follows. Brady has been employed as a full-time washing machine operator by Indiana Hospital (Hospital) from January 15, 1990 until present. At the time of his hire, Brady was informed he had to work every fifth Sunday as part of his job responsibilities and for six years Brady did work every fifth Sunday without incident. During the latter portion of his employment, Brady refused to work on Sundays because he wished to attend church services on Sundays from 9:45 a.m. to 2:00 p.m. The hospital agreed to permit Brady to have scheduled Sundays off provided that he found another employee to cover his shift. The hospital has an unwritten policy that prohibits employees from taking personal days on Sundays.

In both March 1997 and February 1998 Brady was unable to find coverage for his scheduled Sunday, did not report to work, and was suspended for three days on each occasion.

Brady was scheduled to work on Sunday March 8, 1998. He was unsuccessful in finding another employee to cover his shift and the hospital refused his request for a personal day. On Saturday, March 7,1998, Brady’s immediate supervisor called Brady at work and informed him of a temporary solution decided by Hospital management. That temporary solution was Brady was to work four (4) hours on Sunday, March 8,1998 from 5:00 a.m. to 9:00 a.m. and four (4) extra hours throughout the week. This solution allowed Brady to attend his desired church services while not missing any time from work.

When Brady was informed of the solution by his supervisor, Brady requested that the proposal be reduced to writing. An e-mail message confirming the Hospital’s solution was sent to Brady; however, Brady did not receive it on Saturday because by the time the e-mail reached his computer Brady had left work for the day.

Brady ultimately failed to report to work at all on Sunday, March 8, 1998 and the Hospital suspended Brady for three (3) days. Brady filed a claim for unemployment compensation benefits with the Office of Employment Security (EOS), which denied benefits under 43 P.S. § 802(e).¹ Brady appealed that decision to a referee, which reversed the decision of the EOS and granted Brady benefits. Hospital appealed the referee’s decision to the Board, which reversed the decision of the referee and found that Brady’s failure to report to work constituted insubordination and willful misconduct. Brady then filed a petition for review of the Board’s decision with this Court.

On appeal², Brady argues he had good cause for missing work on Sunday, March 8, 1998 because his sincerely held religious beliefs required him to attend church services. Brady asserts that the Board’s denial of unemployment compensation benefits violated his rights protected by the Free Exercise clause of the First Amendment of the United States Constitution. Finally, Brady argues that the Board erred in rejecting the referee’s findings.

In the case at bar, this Court need not address the First Amendment argument raised by Brady. First, this Court should not decide constitutional issues where the matter can be decided on other grounds. Lattanzio v. Unemployment Compensation Board of Review, 461 Pa. 392, 336 A.2d 595 (1975). Second, Brady was suspended for missing work that would not have interfered with his ability to attend the desired church services. Finally, Brady admits several times in the record that the only reason he did not report to work on Sunday, March 8, 1998 was because Hospital’s proposal that he work from 5:00 a.m. to 9:00 a.m. was not reduced to writing. That reason has nothing to do with one’s First Amendment rights.

The employer, in this case Hospital, bears the burden of proving an employee committed willful misconduct,³ which would disqualify him from unemployment benefits. Hershey v. Unemployment Compensation Board of Review, 146 Pa.Cmwlth. 255, 605 A.2d 447 (1992).

In the case at bar, Brady concedes that Hospital has a policy requiring laundry department employees to work every fifth Sunday and that he violated that policy by refusing to work his scheduled Sunday shift. On March 8, 1998 Brady failed to report to work in direct violation of his immediate supervisor’s order. Therefore, this Court holds Brady committed insubordination and willful misconduct.

Once it is determined that an employee has committed willful misconduct the burden is on the employee to prove that good cause existed for that conduct. Ramsey v. Unemployment Compensation Board of Review, 58 Pa.Cmwlth. 288, 427 A.2d 1249 (1981). Brady admits in his deposition several times that the only reason that he did not report to work as directed on March 8, 1998 was because Hospital’s proposal was not reduced to writing. This Court holds that refusing a reasonable order because it is not reduced to writing is not good cause for willful misconduct. An employer has the right to deal with its employees on a non-written basis and the right to expect that reasonable oral requests be carried out by employees.

Accordingly, this Court holds that Brady did not establish that he had good cause for his willful misconduct.

Finally, Brady argues that the Board rejected a finding by the referee without articulating any reason for doing so. Specifically, Brady challenges the finding of the Board that Brady rejected the proposal by Hospital because it was not in writing. Brady cites Treon v. Unemployment Compensation Board of Review, 499 Pa. 455, 453 A.2d 960 (1982), for the proposition that the Board may not disregard the findings made by a referee which are based on uncontradicted and consistent testimony without stating its reasons for doing so. .

The law is well settled in Pennsylvania that the Board is the ultimate fact-finder in unemployment cases. Gioia v. Unemployment Compensation Board of Review, 661 A.2d 34 (Pa.Cmwlth.1995). The Board found that Brady refused to report to work on March 8, 1998 because the proposal had not been reduced to writing in a timely fashion. There is substantial evidence in the record, including Brady’s own admission, to support that conclusion.

The referee found that the reason Brady refused the proposal by Hospital was because he did not feel it was valid because it was not reduced to writing. The Board found Brady refused the proposal because it had not been reduced to writing in a timely fashion. Any factual distinction between the two findings is not relevant to the above legal analysis of the ease.

According, the decision of the Board in affirmed.

ORDER

AND NOW, this 6th day of April, 1999, the order of the Unemployment Compensation Board of Review in the above-captioned matter is hereby affirmed.

1 . 43 P.S. § 802 states:

An employee shall be ineligible for compensation for any week—

(e) In 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....

2 . Whether employee has been suspended for willful misconduct disqualifying employee from unemployment benefits is a question of law subject to review by this Court, and where employer, bearing the burden of proof, has prevailed below, the scope of review is limited to determining whether error of law has been committed or whether necessary findings of fact are unsupported by substantial evidence. Hershey v. Unemployment Compensation Board of Review, 146 Pa. Cmwlth. 255, 605 A.2d 447 (1992).

3 . “Willful misconduct” is an act of wanton or willful disregard of employer’s interest, deliberate violation of employer's rules, disregard of standards of behavior which employer has the right to expect of employees, or negligence indicating intentional disregard of employer’s interests or of employee’s duties and obligations to employer. Lee Hospital v. Unemployment Compensation Board of Review, 139 Pa.Cmwlth. 28, 589 A.2d 297(1991).