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DONALD L. VOUGHT v. COMMONWEALTH PENNSYLVANIA (02/10/86)

decided: February 10, 1986.

DONALD L. VOUGHT, JR., PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT



Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Donald L. Vought, Jr., No. B-233852.

COUNSEL

Lenore M. Urbano, with her, Paul Porell and Danna Rich-Collins, for petitioner.

Jonathan Zorach, Associate Counsel, with him, Charles G. Hasson, Acting Deputy Chief Counsel, for respondent.

Judges MacPhail, Doyle and Barbieri, sitting as a panel of three. Opinion by Judge Doyle.

Author: Doyle

[ 95 Pa. Commw. Page 107]

Donald L. Vought, Jr. (Claimant) appeals from a decision of the Unemployment Compensation Board of Review (Board) which denied Claimant unemployment compensation benefits on the basis of Section 402(e) of the Unemployment Compensation Law (Law), Act of December 5, 1936, Second Ex.Sess., P.L. 2897 (1937), as amended, 43 P.S. ยง 802(e) (willful misconduct).

Claimant was last employed as a baker's helper by Stroehmann Brothers (Employer) for three and a half years. On May 10, 1984, Claimant was suspended after he was observed by a supervisor changing the

[ 95 Pa. Commw. Page 108]

    timer switch on an oven, something he had no permission or authority to do. This incident led to his dismissal two days later. Employer based the dismissal on its conclusion that Claimant's conduct amounted to violation of a Group III Company rule (or a "major offense"), viz., "deliberately delaying or restricting work output or inciting others to do so." The penalty for a major offense was immediate dismissal.

Where a claim of willful misconduct is based upon violation of company rules or policies, the employer has the burden to prove: 1) the existence of a reasonable rule or policy, 2) that the employee knew of the rule or policy, and 3) that the employee willfully violated the rule or policy. Fritzo v. Unemployment Compensation Board of Review, 59 Pa. Commonwealth Ct. 268, 429 A.2d 1215 (1981). In the instant case, the necessity of proving willfulness is doubly crucial since the rule allegedly violated required deliberate behavior.

In this regard, the Board made the following finding of fact: "Claimant believed he was increasing the baking time for muffins so as to prevent their burning or being overdone. In fact, the result was just the opposite." We interpret this finding to mean that Claimant did intend to slow down production (by increasing baking time), and that his intent to keep the muffins from burning was thwarted because they actually burned or overcooked.

There is no support for any of this in the record. The Claimant ...


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