Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Clyde A. Simpson, No. B-189375.
Claude V. Falkenhan, for petitioner.
Charles Hasson, Associate Counsel, for respondent.
Richard I. Thomas, with him Brian J. Dougherty, Thorp, Reed & Armstrong, for intervenor.
Judges Blatt, Williams, Jr. and Craig, sitting as a panel of three. Opinion by Judge Williams, Jr. Judge Mencer did not participate in the decision in this case.
[ 69 Pa. Commw. Page 122]
Clyde A. Simpson (claimant) has appealed from an order of the Unemployment Compensation Board of Review (Board) denying him benefits for a one-week period that he was suspended from work. The basis for the Board's order was its conclusion that the claimant had been suspended for behavior amounting to "willful misconduct," under Section 402(e) of the Unemployment Compensation Law (Law).*fn1
On June 2, 1980, claimant Simpson was suspended from his employment at the Tubular Products Division of the Babcock & Wilcox Company (Company); the period of actual suspension was to include the dates June 3 through June 9, 1980. The reason for the claimant's suspension was his refusal to permit a Company security guard to search his lunch bucket.
When the claimant applied for unemployment compensation, the Office of Employment Security determined that he was ineligible by force of Section 402(e) of the Law. The referee disagreed with that determination, and awarded benefits. It was the referee's conclusion that the claimant had "good cause" for refusing to be searched. However, on a further appeal by the Company, the Board reversed the referee and denied the claim for benefits.
The incident that caused the claimant's suspension occurred on May 29, 1980, after he had completed his work shift that day and had started to leave the Company's premises. As the claimant and several other employees approached the exit gate, a plant security guard stationed there stopped the group and asked them to open their lunch buckets for inspection. The purpose of the inspection, or search, was to see if any
[ 69 Pa. Commw. Page 123]
of the employees stopped were leaving with tools or other property belonging to the Company.
Upon being confronted by the guard, the claimant refused to open his lunch bucket, protesting that the Company had no right to subject him to such a search. The claimant then attempted to walk past the guard and out the gate; that attempt led to some degree of pushing and shoving between the two men. Finally, the guard took the claimant to the nearby gatehouse, to obtain from him information needed to report the incident. The claimant never did allow his lunch bucket to be searched that day, with the consequence being his suspension a few days later.
The Company's decision to conduct the May 29 search of employee lunch buckets was initially prompted by a report that day, from a plant official, that a Company drill was missing. However, before the end of the claimant's work shift that day, the drill had been found. That the tool had been recovered was known to the interested plant officials and security personnel, including the guard that was to later confront the claimant. Nevertheless, the involved plant officials decided to proceed with the bucket search as a "routine matter": because they had already made preparations to conduct a bucket search for the drill, and had not held a "routine" search in a long time.
Company witnesses admitted to the referee that, so far as they knew, the employer had never issued any written rule or notice concerning searches of employees or their possessions. Although the Company issued a manual of employee instructions, which had gone through several printings, that publication is entirely silent on the matter of searches. Equally silent on the question was the labor-management agreement in force between the claimant's union and the Company at the time of the incident here involved.
[ 69 Pa. Commw. Page 124]
Despite the lack of any written plant rule on the subject of searches, the Company has, for several years, pursued a "practice" of conducting periodic, atrandom searches of employee lunch buckets. Under the "practice," when a bucket search is ordered it is conducted at the plant exit gate, as the employees of a given shift are leaving work for the day and are actually on their own time. During the period that a search is in effect, a plant guard will ask each employee passing through the gate to open his or her lunch bucket, so that the guard can see whether any Company property is contained therein.
According to the Company's witnesses in the instant case, the "practice" of having random bucket searches is designed to "keep the employees honest," even when there is no specific belief that an actual theft is being attempted. As for the search of May 29, 1980, the Company's evidence before the referee gave no indication that, at the time the search was ordered to proceed, the employer had any ...