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decided: July 11, 1984.


Appeal from the Order of the Unemployment Compensation Board of Review in case of In re: Claim of Robert F. Comp, Jr., No. B-209982.


Michael Goldberg, for petitioner.

Richard F. Faux, Associate Counsel, with him, Richard L. Cole, Jr., Chief Counsel, for respondent.

Judges Williams, Jr., Doyle and Blatt, sitting as a panel of three. Opinion by Judge Williams, Jr.

Author: Williams

[ 83 Pa. Commw. Page 578]

Robert F. Comp, Jr., (claimant) appeals from the decision and order of the Unemployment Compensation Board of Review (Board) denying his claim for benefits pursuant to Section 402(e) of the Unemployment Compensation Law (Law).*fn1 We reverse.

Claimant was employed as an automatic machine screw operator by the National Bearings Company (employer) from January 1974 until his termination on April 14, 1982. On April 14, 1982 claimant was discharged for breaking the tool of another employee which claimant was using without the owner's permission and for claimant's failure to report the incident to his supervisor.

Claimant was found eligible for benefits by the Office of Employment Security (OES) and the employer appealed. After a hearing, the referee reversed the OES determination and found claimant's conduct rose to the level of willful misconduct rendering him ineligible for benefits. Claimant appealed the referee's decision to the Board which affirmed the referee and petition for review to this Court followed.

Before this Court, claimant argues the referee's findings are not supported by substantial evidence

[ 83 Pa. Commw. Page 579]

    and that the Board committed errors of law.*fn2 While "willful misconduct" is not defined by Section 402(e) of the Law, we have held it to be conduct which is a wanton or willful disregard of the employer's interests, a deliberate violation of the employer's rules, a disregard of the standards of behavior which the employer has the right to expect of an employee, or culpable negligence showing an intentional and substantial disregard of the employer's interests or of the employee's duties and obligations to the employer. Kentucky Fried Chicken of Altoona, Inc. v. Unemployment Compensation Board of Review, 10 Pa. Commonwealth Ct. 90, 309 A.2d 165 (1973). Where an employee has been discharged, the burden is upon the employer to establish the willful misconduct of the employee so as to render the employee ineligible for benefits. Coulter v. Unemployment Compensation Board of Review, 16 Pa. Commonwealth Ct. 462, 332 A.2d 876 (1975).

We look first to claimant's contention that the referee erred in considering claimant's attendance history where the employer did not initially cite absenteeism as a cause for discharge. In Lecker v. Unemployment Compensation Board of Review, 71 Pa. Commonwealth Ct. 266, 455 A.2d 234 (1983), we held that a referee on appeal must consider only those charges of willful misconduct as delineated in the OES determination notice. To allow a critique of other conduct against which charge the employee is unprepared to defend or explain is fundamentally unfair and, absent

[ 83 Pa. Commw. Page 580]

    mutual consent of its consideration, is prohibited. See 34 Pa. Code ยง 101.87; Hanover Concrete Co. v. Unemployment Compensation Board of Review, 43 Pa. Commonwealth Ct. 463, 402 A.2d 720 (1979).

Claimant also calls attention to our decision in Philadelphia County Board of Assistance v. Unemployment Compensation Board of Review, 64 Pa. Commonwealth Ct. 451, 440 A.2d 693 (1982). In that case the employer discharged the employee for an unauthorized absence from work from October 30 through November 14, 1979.*fn3 At the referee's hearing, the employer testified as to the employee's prior history of unauthorized absences and stated this prior history was a reason for discharge. We held that where the employer states that claimant's discharge was for a specific unauthorized absence, the claimant's prior absentee history was irrelevant. Id. at 454-55, 440 A.2d at 695. The circumstances of the instant case are similar to those in Philadelphia County. Here, the employer stated to the OES that claimant was discharged for the broken tool incident. The employer specifically told the OES that claimant was not discharged for the absence of April 5, 1982.*fn4 At the hearing, however, the employer's witness did testify as to the absence of April 5, 1982 and claimant's refusal to work Good Friday to make up the missed day. In addition, five of the ten Findings of Fact made by the referee dealt with the April 5, 1982 absence. In that employer stated both to claimant and to the OES that claimant's April 5, 1982 absence was not one of the reasons for

[ 83 Pa. Commw. Page 581]

    discharge, we agree with claimant that the testimony of the employer's witness and the referee's findings relating to that absence were irrelevant to this case. As such, those findings*fn5 cannot be used to support the Board's conclusion that claimant's conduct amounted to willful misconduct.

Claimant also attacks the relevancy of the referee's finding of fact relating to his prior history of absenteeism.*fn6 Claimant contends that the absenteeism, the last instance of which was a year prior to his discharge not counting the April 5, 1982 absence, is too remote to be a basis for a denial of benefits. In Tundel v. Unemployment Compensation Board of Review, 44 Pa. Commonwealth Ct. 312, 404 A.2d 434 (1979), we held that an incident which took place twenty-five days prior to claimant's discharge with no explanation by the employer for the delay was too remote to constitute the basis for a denial of benefits. Id. at 316-17, 404 A.2d at 436. Accordingly, we find a

[ 83 Pa. Commw. Page 582]

    two-day suspension for unauthorized absences from work which was imposed a year prior to claimant's ultimate dismissal too remote to support the denial of benefits.*fn7

[ 83 Pa. Commw. Page 583]

We now reach claimant's final contention that the Board's conclusion that his conduct amounted to willful misconduct is erroneous as a matter of law. Whether or not claimant's actions constitute willful misconduct is a question of law reviewable by this Court. Nyzio v. Lee Tire and Rubber Co., 26 Pa. Commonwealth Ct. 600, 364 A.2d 981 (1976). In view of the foregoing, the only conduct of claimant which remains in the record is claimant's breaking of the tool belonging to another employee. Claimant admits using the tool without his co-worker's permission and that he did not report the incident until confronted by his supervisor the next day. The Board argues that the broken tool was the last incident of a long unsatisfactory record and that the broken tool incident, when viewed with claimant's overall record, amounts to willful misconduct. We disagree. With the record deleted of the claimant's unauthorized absences which we held could not properly be considered, the only complaint articulated by the employer's witness was the broken tool incident. The employer's witness stated that there were no company rules or regulations dealing with employees borrowing tools from each other. Therefore, claimant cannot be charged

[ 83 Pa. Commw. Page 584]

    with a deliberate or wanton violation of the employer's rules so as to constitute willful misconduct. The record is also seriously deficient in what way claimant's conduct has been detrimental to the employer's interest. While the borrowing and breaking of a tool of another without permission is not to be condoned, especially where claimant conceals the fact from the other employee and his supervisor, it is not such a breach of the standards of behavior expected of an employee by an employer so as to rise to the level of willful misconduct. Claimant was about the employer's business when he broke the borrowed tool, not on a frolic of his own. As the employer and the Board have articulated no adverse effects upon the employer resulting from claimant's unauthorized use and abuse of a co-worker's tool, the denial of benefits due to claimant's misconduct cannot be upheld as it is not supported by the record or the relevant facts as found by the referee.

Order reversed.


And Now, the 11th day of July, 1984, the order of the Unemployment Compensation Board of Review at No. B-209982, dated September 17, 1982, denying unemployment compensation benefits to Robert F. Comp, Jr., is reversed.



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