BK Foods, Inc. v. Commonwealth

Opinion by Judge Doyle, BK Foods, Inc. (Employer) petitions for review of an order of the Unemployment Compensation Board of Review (Board), which found that Claimant was not ineligible for benefits under Section 402(e) of the Unemployment Compensation Law (willful misconduct).1 We affirm. Claimant was employed by Employer as the manager of a Burger King restaurant in Pittsburgh, Pennsylvania. Employer had a policy that a restaurant manager was responsible for making bank deposits twice a day, — 634 — although the two deposits were normally made together and this practice was accepted by Employer. On January 15, 1987, claimant began his shift by taking excess hamburger buns to another of Employers stores. When he returned to his store, Claimant was unable to make a deposit of that days and the previous nights funds because he was the only manager present at the store. When an assistant manager arrived on duty, he asked him to count the money, make out the deposit slips, and take the money to the bank. Claimant did this because four members of his six member staff were absent, which meant he was needed to operate the restaurant, and because he needed time to make out work schedules. Although the assistant manager did fill out the deposit slips, he left the two deposit bags in the safe and did not take them to the bank. When the night manager arrived and noticed the two deposit bags in the safe, she hid them in the bottom of the safe. The following day Claimant had to prepare the payroll. Consequently, he asked a second assistant manager to make the deposits. This assistant was supposed to check for any deposits left in Employers safe and deposit them, pick up the previous days deposit slips, and record the deposit slip amounts on “report sheets.” The assistant did not notice the hidden deposit bags nor did he inform Claimant that the January 15, 1987 deposit slips were missing. On January 17, 1987, Employer conducted a payroll audit at which time it was discovered that no deposit had been made on January 15, 1987. An ensuing search of the store uncovered the deposit bags in the safe. Claimant was discharged for failing to make the deposit. Claimant applied for benefits, but the Office of Employment Security (OES) found him ineligible under Section 402(e). The referee reversed the OES’ determination, finding in pertinent part: — 635 — The record establishes that there was a violation of store rules and policies in that certain bank deposits were not made in a timely manner. In the judgment of the referee, however, the claimant is not guilty of willful misconduct in regard to violation of policy. It appears that he had the authority to direct a subordinate to make the deposits and that he acted reasonably in relying upon subordinates to carry out the assigned duty.[2] Referees decision at 2 (emphasis added). Employer appealed and the Board affirmed. This appeal followed.3 The employer has the burden of proving willful misconduct, McGuill v. Unemployment Compensation Board of Review, 105 Pa. Commonwealth Ct. 222, 523 A.2d 1194 (1987). In a rules violation case, the employer must show the existence of the rule and its knowing violation. Smith v. Unemployment Compensation Board of Review, 97 Pa. Commonwealth Ct. 24, 508 A.2d 1281 (1986). The record here establishes only that Employer — 636 — had a policy that managers were ultimately responsible for seeing bank deposits were made daily; it does not establish, however, that he had to take the deposits to the bank personally. The Board here found that Claimant could delegate his duties, such as making deposits and logging deposit slips, to subordinates. Although Employer now vigorously contends he could not delegate this duty, this finding is supported by Claimants testimony. Matters of credibility and evidentiary weight are within the province of the Board, McGuill, and the Board here chose to believe the testimony of Claimant over that of Employers witnesses. See Kirkwood v. Unemployment Compensation Board of Review, 106 Pa. Commonwealth Ct. 92, 525 A.2d 841 (1987). Further, Employer acknowledged to the Board that Claimant could delegate his duties. Since Claimant could delegate his duties, the question then becomes whether Claimant knew that his subordinate had failed to make the deposits. Blake v. Unemployment Compensation Board of Review, 56 Pa. Commonwealth Ct. 358, 425 A.2d 43 (1981). We agree with the Board that the evidence here does not show Claimant was aware of his assistants failure to make the deposits. Likewise, Claimant cannot be faulted for failing to ascertain that the January 15, 1987 deposit had not been made by checking the deposit slips on January 16, since he could also delegate that duty. The assistant manager on that date had the duty to make the restaurants bank deposits and log the amount of the deposits from the deposit slips. This assistant manager, however, failed to find the previous days deposits, as they were hidden, and he did not tell Claimant the January 15, 1987 deposit slips were missing. Thus, Claimant was not aware that the January 15, 1987 deposit had not been made. — 637 — Employer cites in support of its argument that Claimant was guilty of willful misconduct the case of Schmutz v. Unemployment Compensation Board of Review, 74 Pa. Commonwealth Ct. 510, 459 A.2d 1378 (1983), where, Employer asserts, we found the claimant had committed willful misconduct by failing to place holds on accounts of customers known to the teller, even though claimant asserted it was normal bank procedure not to place holds during busy times. Thus, it argues that even if it were normal employer practice to allow managers to delegate duties, Claimant would still have committed willful misconduct since he was the one ultimately responsible to see that bank deposits were made. The willful misconduct in Schmutz, however, was not the tellers failure to place holds on accounts of customers known to her, but her failure to enter all checks in the computer, a policy uniformly enforced by her employer. Id. Employer argues that even if it did not have a policy, Claimants conduct disregarded standards of behavior which Employer had a right to expect, and, thus, constituted willful misconduct. We disagree. At best all Employer has shown here was negligence. In order for a negligent act to constitute willful misconduct, the employer must show the employees negligent act evidences culpability, wrongful intent, evil design or substantial disregard for employers interest or employees duties. Fusaro v. Unemployment Compensation Board of Review, 85 Pa. Commonwealth Ct. 507, 483 A.2d 1013 (1984). Claimants actions here do not rise to that level. Although we understand that Employer views violations of store policy regarding store funds as serious, there is a critical distinction between an employers right to terminate employment and a states right to deny unemployment compensation benefits. Breininger v. — 638 — Unemployment Compensation Board of Review, 103 Pa. Commonwealth Ct. 502, 520 A.2d 949 (1987). Affirmed. Order Now, September 23, 1988, the order of the Unemployment Compensation Board of Review in the above-captioned matter is hereby affirmed. Footnotes [1] Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(e). [2] Although the underlined portion of the quotation was found in the “Reasoning” section of the referees opinion (the Board made no findings of fact in this case and affirmed on the basis of the referees decision), this passage is essentially two findings of fact. We have considered in the past portions of the “Reasoning” or “Discussion” section of a Board opinion to be findings of feet, Monroe v. Unemployment Compensation Board of Review, 112 Pa. Commonwealth Ct. 488, 491 n.1, 535 A.2d 1222, 1223 n.1 (1988), although this is not the preferred practice. Id. [3] Our scope of review is limited to determining whether constitutional rights or the provisions of 2 Pa. C. S. §§501-508 have been violated, an error of law has been committed, and whether the Boards essential findings of fact are unsupported by substantial evidence. 2 Pa. C. S. §704; Kirkwood v. Unemployment Compensation Board of Review, 106 Pa. Commonwealth Ct. 92, 525 A.2d 841 (1987).