Goodwill Industries v. Unemployment Compensation Board of Review

McGINLEY, Judge. Goodwill Industries (Employer) appeals from the September 29,1992, order of the Unemployment Compensation Board of Review (Board) reversing a referee’s decision that Ervin L. McIntyre (Claimant) was ineligible for benefits because he was discharged from employment for willful misconduct under Section 402(e) of the Unemployment Compensation Law (Law).1 We reverse. The issue before us is whether the Board erred in holding that Claimant’s off-duty distribution of approximately 500 leaflets containing negative statements about Employer did not constitute willful misconduct. Our scope of review is limited to determining whether constitutional rights were violated, whether an error of law was committed or whether all necessary findings of fact are supported by substantial evidence. Moonlight Mushrooms, Inc. v. Unemployment Compensation Board of Review, 142 Pa.Commonwealth Ct. 153, 158, 596 A.2d 1264, 1266 (1991). A willful misconduct determination is a question of law subject to our review. Simmons v. Unemployment Compensation Board of Review, 129 Pa.Commonwealth Ct. 315, 565 A.2d 829 (1989), aff'd 528 Pa. 590, 599 A.2d 646 (1991). — 150 — Evidence of one of the following is necessary for a finding of willful misconduct: (1) wanton and willful disregard of an employer’s interest, (2) a deliberate violation of the employer’s rules, (3) a disregard of expected standards of behavior which an employer may rightfully expect from an employee, or (4) negligence which manifests culpability, wrongful intent, evil design, or intentional and substantial disregard for an employer’s interest or an employee’s duties or obligations. Alexander v. Unemployment Compensation Board of Review, 138 Pa.Commonwealth Ct. 647, 650, 588 A.2d 1341, 1342 (1991). In its September 29, 1992, Decision and Order, the Board made the following findings of fact: 1. Claimant was last employed as a truck helper and occasional driver by Goodwill Industries for approximately three years at a final rate of $5.72 per hour and his last day of work was January 27, 1992. 2. Claimant was dissatisfied with certain procedures the employer utilized in the conduct of its business. 3. Claimant attempted to address his concerns with the employer at various times. 4. On Saturday, January 25, 1992, while off duty, claimant composed approximately 500 flyers stating his opinion in the form of questions.[2] — 151 — 5. Employer, on Monday, January 27, 1992, discovered that claimant had distributed the flyers and confronted claimant. 6. During the meeting, the employer advised claimant that he was being discharged for distributing misleading information to the public without the employer having an opportunity to defend itself. (Footnote added). Employer contends that the Board erred in reversing the referee’s determination of willful misconduct because Claimant wantonly and wilfully disregarded not only Employer’s interests, but also disregarded the standard of behavior rightfully expected of him by: (1) refusing to participate in an established grievance procedure; and (2) presenting misleading information directly to the public without affording Employer an opportunity to address Claimant’s concerns. In Kelley v. Unemployment Compensation Board of Review, 78 Pa.Commonwealth Ct. 136, 466 A.2d 1143 (1983), we reviewed another instance where employees addressed their business-related concerns to company outsiders. In Kelley the issue was “whether the claimants, by publishing their complaints to persons outside the company in ways which could materially jeopardize their employer’s financial and reputational interests, breached standards of behavior which their employer could reasonably expect.... ” Id. at 141, 466 A.2d at 1146. In Kelley, weekend supervisors at a group-home for mentally-retarded persons distributed a letter regarding the alleged inadequacy of patient care to interested company outsiders.3 Because the employees in Kelley attempted to resolve their concerns internally, sent their letter to “only persons who had some official or legal interest in the conditions they reported,” and did not have motives tainted by malice or indifference, we — 152 — concluded that the Board erred in finding willful misconduct. Guided by our state Supreme Court’s decision in Boyer v. Unemployment Compensation Board of Review, 499 Pa. 552, 454 A.2d 524 (1982),4 we noted that “[e]ach case of this type must be weighed on its own facts to determine whether, in light of his responsibility of loyalty to his employer, the employee acted justifiably and reasonably.” Kelley, 78 Pa.Commonwealth Ct. at 143-44, 466 A.2d at 1147. Applying the balancing test established in Boyer and Kelley to the facts of the present case, we conclude that Claimant did not act in a justifiable or reasonable manner and that his actions amounted to willful misconduct in disregard of Employer’s interests. First, contrary to the Board’s finding in F.F. No. 3 that, “Claimant attempted to address his concerns with the employer at various times,” the record indicates that Claimant had scheduled a meeting with Rick Moser, Employer’s executive supervisor, to discuss his concerns: EL [Employer’s Counsel]: Mr. McIntyre, you indicated that you tried to talk to a number of people at work [concerning the allegations in the leaflets], unsuccessful at doing that. C: Yes. EL: Isn’t it true that you had a scheduled meeting with Mr. Moser, which you failed to keep? C: Yes, and I just said why I didn’t keep it with Rick. Because when I went to Moser the first time to speak to him, the way that he hollered at me, and told me that I don’t have time to speak to you, and I’d get back with you, I decided that I would pass speaking to him, and wait for the transportation meeting with Ron. — 153 — EL: Even though he scheduled a time for you to meet with him? C: Yes. Certified Record, Item No. 7; Notes of Testimony (N.T.), March 24, 1992, at 9-10. As indicated, Claimant was afforded an opportunity on or about January 20, 1992, to meet with Rick Moser, Employer’s executive supervisor, and discuss his problems with the company’s policies. Instead, Claimant chose not to meet and discuss his concerns with Mr. Moser or Mr. Moser’s superiors and proceeded to distribute his leaflets to the public on January 25-26, 1992. In view of this, we conclude that even though Claimant may have attempted to speak to several people, Claimant was afforded an opportunity to adequately pursue his concerns within the framework of Employer’s grievance procedures before disseminating his written allegations, but failed to do so. As a result, we hold that Claimant acted in disregard of Employer’s interests. Second, instead of first distributing his written allegations to company officials or other individuals who possessed a direct or legal interest in the conditions reported, Claimant distributed 500 leaflets to the general public at a large Lancaster mall and food store. Such conduct indicates that Claimant was, at best, indifferent to Employer’s interests. Having determined that the factual situation in the controversy sub judice is distinguishable from that in either Boyer or Kelley, we hold that the Board erred in not finding that Claimant’s discharge was based on willful misconduct. For the first time on appeal before this Court, the Board contends that Claimant was exercising his First Amendment right to freedom of speech and thus cannot be denied benefits under Section 402(e) on the ground of willful misconduct. In Gateway School District v. Department of Education, 126 Pa.Commonwealth Ct. 256, 559 A.2d 118 (1989), we noted: On appeal from a final order of an administrative agency, a reviewing court may address only those issues which were raised in exceptions to the agency. Anthony Iron & Metal — 154 — Co. v. Department of Transportation, 109 Pa.Commonwealth Ct. 347, 531 A.2d 90 (1987). Notwithstanding this general limitation, a reviewing court may consider questions involving the validity of a statute, questions involving subject matter jurisdiction, and questions which the court is satisfied could not, by the exercise of due diligence, have been raised before the government agency. Pa.R.A.P. 1551;.... Id. 126 Pa.Cmwlth. at 260-61, 559 A.2d at 120. In the present case, our review of the record indicates that Claimant did not raise a First Amendment argument before either the referee or the Board, and the Board did not review the allegation that Claimant was exercising his First Amendment rights in its September 29, 1992, decision. We also note that the Claimant did not challenge the validity of Section 402(e) of the Law or argue that it is prima facie unconstitutional. Rather, the Board contends that its decision may be affirmed, because under the facts of this case, a denial of benefits under Section 402(e) violates Claimant’s First Amendment right to freedom of speech. However, no reason has been offered why this issue was not, with the exercise of due diligence, raised by Claimant before the Board. Accordingly, we conclude that this issue has been waived. The order of the Board is reversed. ORDER AND NOW, this 23rd day of November, 1993, the order of the Unemployment Compensation Board of Review in the above-captioned matter is reversed. PALLADINO, J., concurs in the result only. KELLEY, J., dissents. Footnotes [1] Act of December 5, 1936, Second Ex.Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e). This section provides in part that "[a]n employee shall be ineligible for compensation for any week ... [i]n which his unemployment is due to his discharge for willful misconduct connected with his work.” [[2]] 2. The flyer read as follows: Goodwill Industries of Lancaster Do you know who you are buying or giving to? Do you know Goodwill gives nothing to the poor? Do you know many of your donation [sic] of clothing are baled up and sold as rags, when they get to [sic] many to handle, which happens a lot? Do you know many donations are left out side [sic] over the weekend in bad weather? Do you know when you give food they throw it in the trash? Do you know most Black workers who worked in the Transportation Dept, have filed complaints of discrimination? Do you know Hispanics [sic] workers have been fired for stealing, while white workers have stold [sic] all they want? A Concerned Worker of Goodwill R.R. 69a. [3] The claimants sent their letter to the Montgomery County agency responsible for placing mentally retarded persons, the Special Master in a federal court action involving mentally retarded issues, counsel for the Association of Retarded Citizens and the legal guardians of one of the group-home residents. [4] In Boyer the Court noted with respect to the reasonableness of the employee’s actions: (1) the employee’s good faith belief that his supervisor’s criticisms were unjustified, and possibly motivated by racial animus; (2) the employee's efforts to resolve the problem by means of discussions with his supervisor and the personnel manager of his department; and (3) the fact that he sent copies of the letter to only those persons who had received copies of his supervisor’s memos. Kelley, 78 Pa.Commonwealth Ct. at 142, 466 A.2d 1143 (citing Boyer, 499 Pa. at 558, 454 A.2d at 525-27).