J. Fishbein v. UCBR
536 C.D. 2017
| Pa. Commw. Ct. | Oct 27, 2017Background
- Fishbein (Claimant), a unionized Clerk 3 Audit for the Pennsylvania Turnpike Commission, was employed from Aug. 2012 to Aug. 18, 2016, when he was discharged for repeated off‑hours texts and other communications alleged to create a hostile work environment under Article 7, §4 of the CBA.
- Employer documented multiple prior meetings and warnings (Oct. 2015, May 2016, May 23, 2016, Aug. 11, 2016) about Claimant’s emails/texts; Claimant underwent a fitness‑for‑duty exam and returned to work June 15, 2016.
- Relevant misconduct: numerous texts to his supervisor outside work hours (July–Aug. 2016), including after a cease‑and‑desist message on Aug. 17, 2016; terminated Aug. 18, 2016 for violating Article 7, §4 (discriminatory harassment/interference).
- Claimant filed for unemployment benefits Aug. 19, 2016; benefits were denied by the service center, affirmed by a referee and the Unemployment Compensation Board of Review, and Claimant appealed pro se to Commonwealth Court.
- The Board found Employer’s witnesses credible; Claimant presented no testimony at the referee hearing and did not establish good cause for his rule violations.
Issues
| Issue | Fishbein's Argument | Employer/Board's Argument | Held |
|---|---|---|---|
| Whether Claimant knowingly violated a work rule / engaged in willful misconduct under 43 P.S. §802(e) | He lacked knowledge of Article 7, §4 and thus did not act willfully | Claimant was bound by the CBA as a union member and had constructive notice; repeated warnings show willful misconduct | Held: Employer met burden; substantial evidence supports willful misconduct; benefits denied |
| Whether record contains substantial evidence of willful misconduct | No substantial evidence; decision unsupported | Referee/Board credited Employer testimony documenting warnings, texts, and final cease‑and‑desist | Held: Findings of fact supported by substantial evidence; reviewed de novo as legal issue but facts upheld |
| Whether Employer failed to follow progressive discipline (Article 25, §1 of CBA) | Termination violated progressive discipline in CBA | Argument waived / not in certified record before referee; Board cannot consider extra‑record evidence | Held: Claimant’s Article 25 argument not considered because provision was not part of the certified record |
| Admissibility of Article 7, §4 excerpt / sufficiency of CBA evidence | Objection that exhibit was only an excerpt and not proven to be the operative CBA | Manager testified the excerpt is the actual, identical language applicable; Employer properly authenticated exhibit | Held: Overruled; Article 7, §4 admissible; Claimant could have submitted full CBA but did not |
| Whether termination implicated discrimination against a protected class and lack of EEOC investigation | He did not discriminate against a protected class and was denied an impartial EEOC investigation | Issue not raised before referee/Board; thus waived on appeal | Held: Waived; Court will not address it on appeal |
Key Cases Cited
- Johns v. Unemployment Compensation Board of Review, 87 A.3d 1006 (Pa. Cmwlth.) (defines willful misconduct tests)
- Yost v. Unemployment Compensation Board of Review, 42 A.3d 1158 (Pa. Cmwlth.) (initial employer burden to show rule and violation)
- Gioia v. Unemployment Compensation Board of Review, 661 A.2d 34 (Pa. Cmwlth.) (Board as ultimate factfinder)
- Walsh v. Unemployment Compensation Board of Review, 943 A.2d 363 (Pa. Cmwlth.) (substantial‑evidence standard for factual findings)
- Gibson v. Unemployment Compensation Board of Review, 760 A.2d 492 (Pa. Cmwlth.) (constructive notice of rules discoverable by due diligence)
- Shapiro v. Cook United, Inc., 762 F.2d 49 (6th Cir.) (union member charged with constructive knowledge of CBA terms)
- McKenna v. Pennsylvania State Horse Racing Commission, 475 A.2d 505 (Pa. Cmwlth.) (court will not consider extra‑record exhibits appended to briefs)
- Croft v. Unemployment Compensation Board of Review, 662 A.2d 24 (Pa. Cmwlth.) (same principle on record limitation)
- Chapman v. Unemployment Compensation Board of Review, 20 A.3d 603 (Pa. Cmwlth.) (issues not raised below are waived on appeal)
- Torres‑Bobe v. Unemployment Compensation Board of Review, 125 A.3d 122 (Pa. Cmwlth.) (scope of appellate review)