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ANNETTE HORSEFIELD v. COMMONWEALTH PENNSYLVANIA (09/29/87)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: September 29, 1987.

ANNETTE HORSEFIELD, 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 Annette Horsefield, No. B-248809.

COUNSEL

Robert M. Cohen, Blair Legal Services Corporation, for petitioner.

Jonathan Zorach, Assistant Counsel, with him, Clifford F. Blaze, Deputy Chief Counsel, for respondent.

Judges Craig and Palladino, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Palladino.

Author: Palladino

[ 109 Pa. Commw. Page 571]

This is an appeal from a decision of the Unemployment Compensation Board of Review (Board) affirming the referee's denial of benefits to Annette Horsefield (Claimant), under Section 3 of the Unemployment Compensation Law, Declaration of Public Policy.*fn1

Claimant was employed by Cesare Battisti Mutual Benefit Association (Employer) as a part-time bartender for 1 1/2 years until her termination on January 26, 1986. The referee's findings which are pertinent follow:

3. The claimant in December 1984 prior to working for her last employer was arrested by

[ 109 Pa. Commw. Page 572]

    the Pennsylvania State Police and Charged with two violations of the Controlled Substance Act.

4. The claimant on December 2, 1985 pleaded guilty to the charges and was sentenced to two years probation with a fine, restitution and costs of $660.00. This appeared in the local newspaper.

5. The PLCB (Pennsylvania Liquor Control Board) notified the employer that because of claimant's conviction on December 2, 1985 she was to be terminated.

6. The employer on January 26, 1986 notified the claimant that she was terminated pending a further review. The employer is writing to the PLCB and trying to have claimant permitted to work.

7. The claimant's conduct in December 1984, her arrest and conviction on December 2, 1985 was inconsistent with acceptable standards of behavior and does directly reflect upon her ability to perform her assigned duties.

(Emphasis in original.)

On appeal to this court,*fn2 Claimant asserts that the use of Section 3 to deny her benefits was improper or in the alternative that there was an insufficient nexus between Claimant's conduct and her ability to perform her job. Whether Section 3 is applicable or whether Claimant's conduct is sufficient to make her ineligible for benefits under Section 3 are questions of law subject

[ 109 Pa. Commw. Page 573]

    to our review. Unemployment Compensation Board of Review v. Derk, 24 Pa. Commonwealth Ct. 54, 353 A.2d 915 (1976).

As to her argument that Section 3 was improperly used, it is well settled that this section may be a substantive basis for denial of unemployment compensation benefits to employees who are discharged as a result of non-work-related incidents. Adams v. Unemployment Compensation Board of Review, 40 Pa. Commonwealth Ct. 486, 397 A.2d 861 (1979).

As to the argument that the nexus between her conduct and the ability to perform her job is not sufficient, the question of whether an employee's conduct is such as to disqualify her from benefits under Section 3, has been dealt with by this court which has applied the two prong test formulated in Derk. "In order to deny compensation . . . [t]he employer must present some evidence showing conduct of the claimant leading to the criminal arrest which is inconsistent with acceptable standards of behavior and which directly reflects upon his ability to perform his assigned duties." Derk, 24 Pa. Commonwealth Ct. at 57, 353 A.2d at 917. "Proof of a criminal conviction, the type of which would directly reflect on the ability of a claimant to continue in the type of position that he held, would constitute highly persuasive, if not controlling, evidence of a violation of the restrictions of Section 3 of the Act." Id. at 57 n. 2, 353 A.2d at 917 n. 2.

This court has considered a number of factors to determine whether the employee's conduct "reflects adversely on his fitness to do his job." Snelson v. Unemployment Compensation Board of Review, 93 Pa. Commonwealth Ct. 539, 545, 502 A.2d 734, 737 (1985). Some of these factors are: "(a) the specific nature of the offense committed by Claimant; (b) the nature of Claimant's assigned duties; (c) whether Claimant's job

[ 109 Pa. Commw. Page 574]

    requires any special degree of trust on the part of the employer; and (d) any other circumstances which may particularly affect Claimant's ability to do his job," Southeastern Pennsylvania Transportation Authority v. Unemployment Compensation Board of Review, 96 Pa. Commonwealth Ct. 38, 43, 506 A.2d 974, 977 (1986). When making this determination, the Snelson court's reasoning was as follows:

[N]o single factor is necessarily dispositive of the issue of whether a claimant's conduct reflects adversely on his fitness to do his job. Rather, if an examination of all relevant circumstances, including especially the nature of the conduct in question, leads to the conclusion that a claimant's conduct is incompatible with his job responsibilities, then the second prong of the Derk test is satisfied. While a consideration of a claimant's specifically assigned duties may be relevant to this determination, if it is otherwise apparent that the claimant's conduct was inimical to the interests of his employer, it is not necessary for an employer to present into evidence a description of a claimant's specific duties.

Snelson, 93 Pa. Commonwealth Ct. at 545, 502 A.2d at 737.

In the case at bar, Claimant was convicted after she pleaded guilty to two violations of the Controlled Substance Act.*fn3 Certainly for someone who works as a bartender this is conduct contrary to acceptable standards and satisfies the first prong of the Derk test.

The question then remains whether her conduct reflects adversely on her fitness to do her job as a bartender. There was testimony that Claimant's conviction

[ 109 Pa. Commw. Page 575]

    was reported in the newspaper, that there were rumors circulating in the club about Claimant and her ability to work for Employer, and that Employer could be fined or lose his liquor license because of Claimant.*fn4 A

[ 109 Pa. Commw. Page 576]

    bartender's job embraces more than the mere act of passing a drink across a bar. The integrity and the reputation of the bar are tied inextricably to the character of the bartenders who interact with the customers. While there is no doubt that conviction for drug violations may not prevent Claimant from performing the physical act of making and serving a drink, there is no denying that customers may choose to go elsewhere for potation rather than patronize a bar where the bartender is connected with drugs. Although the crime did not occur on Employer's premises, Claimant's conduct was clearly inimical to her Employer's interests.

After reviewing the record, we agree with the Board's determination that the above factors provide sufficient evidence to support a conclusion that Claimant's conduct and subsequent conviction are incompatible with her responsibilities as a bartender. Since both prongs of the Derk test are satisfied, we conclude that Claimant was at fault under Section 3, and benefits were properly denied. Accordingly, we affirm.

Order

And Now, September 29, 1987, the order of the Unemployment Compensation Board of Review in the above-captioned matter is affirmed.

Disposition

Affirmed.


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