Appeal from the Order of the Unemployment Compensation Board of Review, in the case of Claude Herbert, No. B-267579.
Terry L. Fromson, for petitioner.
Maribeth Wilt-Seibert, Assistant Counsel, with her, Clifford F. Blaze, Deputy Chief Counsel, for respondent.
Judges Doyle and McGinley, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Doyle. Senior Judge Barbieri dissents.
[ 123 Pa. Commw. Page 547]
This is an appeal by Claude Herbert (Claimant) from an order of the Unemployment Compensation Board of Review (Board) which denied Claimant benefits pursuant to Section 402(e) of the Unemployment Compensation Law, Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e) (willful misconduct).
The Board made its own findings and found that Claimant had been employed by Liberty Maintenance (Employer) as a maintenance worker from April 15, 1978 to December 17, 1987. During the course of his employment Claimant had a history of tardiness and received warnings in this regard. Claimant was discharged for being one hour late to work on December 17. The Board specifically found that Claimant did not have good cause for his lateness and denied benefits. This appeal ensued.
On appeal, Claimant contends that the Board erred in concluding that he lacked good cause for his lateness. Claimant testified that he had left home for work at his usual time but that because of a fire he encountered en route to work and the resultant traffic tie-up he was late, and was unable to telephone and report his whereabouts. This testimony was unrebutted. The Board, in concluding that Claimant had not established good cause for his conduct, never explained whether it had rejected Claimant's evidence on credibility grounds or on grounds that
[ 123 Pa. Commw. Page 548]
it was a legally insufficient excuse even if believed. As our opinion will explain, this distinction is critical.
It is clear that the burden to prove willful misconduct is on the employer. Mendez v. Unemployment Compensation Board of Review, 101 Pa. Commonwealth Ct. 366, 516 A.2d 806 (1986), petition for allowance of appeal denied, 515 Pa. 589, 527 A.2d 548 (1987). Excessive lateness where warnings were given can be a basis for a determination of disqualifying willful misconduct. See, e.g., Dotson v. Unemployment Compensation Board of Review, 57 Pa. Commonwealth Ct. 248, 425 A.2d 1219 (1981). An employee, however, can be eligible for benefits if his lateness was for "good cause," i.e., justifiable under the circumstances. Mendez. The employee bears the burden of establishing good cause. Fritz v. Unemployment Compensation Board of Review, 66 Pa. Commonwealth Ct. 492, 446 A.2d 330 (1982).
We held in Mendez, that where an employee with a past record of tardiness was discharged for the final act of lateness occurring because of a traffic accident resulting in an obstruction on an interstate highway, the employee had established good cause for his lateness and could not be denied benefits. Mendez is factually analogous to Claimant's version of what occurred in this case.*fn1 Thus, if the Board rejected Claimant's good cause argument as legally insufficient it acted in a manner inconsistent with this Court's opinion in Mendez and, thus, committed error. If, however, it ...