Petition — Simpson v. Pennsylvania

Office - Supreme Court, U.S.

FILED

MAY 2&7 1983

ALEXANDER UL. STEVAS,

NO.

CLERK

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1982

CLYDE A. SIMPSON,

Petitioner

Vv.

COMMONWEALTH OF PENNSYLVANIA

UNEMPLOYMENT COMPENSATION BOARD

OF REVIEW,

Respondent,

THE BABCOCK & WILCOX COMPANY,

Intervenor

ON WRIT OF CERTIORARI TO THE

PENNSYLVANIA COMMONWEALTH COURT

PETITION FOR WRIT OF CERTIORARI

Claude V. Falkenhan, Esc.

201 Spruce Street

Zelienople, Pa. 16063

(412) 452-5181

PETITION FOR WRIT OF CERTIORARI

TO THE PENNSYLVANIA COMMONWZALTH COURT

Clyce a Simpson, Petitioner, prays

issuance of a writ of certiorari to re-

view the judgment of the Pennsylvania

Commonwealth Court entered in the above-

entitled matter September 17, 1962, to

which the Pennsylvania Supreme Court,

by its Order entered February 28, 1983,

denied your petitioner's Petition For

Allowance Of Appeal.

QUESTION PRESENTED FOR REVIEW

Petitioner's employer of 29 years

suspended him from work when petitioner

refused to open his lunch bucket for

inspection at employer's first such

demand ever made on him, and while em-

ployer did not suspect anyone of possess~-

ing its property. Petitioner had object-

ed that such demand would be for unreascn~

apie searcn ana an invasion of nis privacy

ie

his union contract @id not call for sub-

mission, employer had published no rule

Gemanding submission. Now, was Pennsyl-

vania entitled to deny petitioner un-

employment compensation benefits on

ground the refusal was “willful mis-

conduct"?

LIST OF ALL PARTIES TO PROCEEDINGS BELOW

1. Clyde A. Simpson, your petitioner,

represented there by his present counsel.

2. Commonwealth of Pennsylvania

Department of Labor and Industry

Unemployment Compensation Board

of Review

Labor and Industry Building

Harrisburg, Pa.,17121

Note: The Unemployment Compensation

Board of Review did not appear

by attorney in Pennsylvania

Commonwealth Court, nor briet

the case nor participate in

oral argument. Intervenor

Babcock & Wilcox Company,

mentioned next, did enter and

brief and argue, and for some

reason Intervenor served a

copy of its Brief on Respondent

Board at its address above but

directed to the attention of

one Charles Hasson, Esquire.

ae (As Intervenor)

Babcock & Wilcox Company

Beaver Falls, Pennsylvania 15010

represented in Commonwealth Court by

Richard I. Thomas, Esquire,

Thorpe Reed & Armstrong

2900 Grant Building

Pittsburgh, Pennsylvania 15219.

TABLE OF CONTENTS PAGE

QUESTION PRESENTED FOR REVIEW ... 1

LIST OF ALL PARTIES TO

PROCEBOING BELOW cccccccccccce O73

mee OR CONSIITE. 24 cc ccccccacas 2

TAREE OF "AUTHORETING. cc cccccccccs S78

rs OP GUTNICU .ccccccccccs 67 Ee

GROUNDS ON WHICH JURISDICTION

nae 10

CONSTITUTIONAL PROVISIONS AND

cy MR a at es ee 10-13

-3-«

STATEMENT OF THE CASE.......... [3-21

ARGUMENT. 0 66 € 6:6 6 & @ @ 8.6 0 @ © 60 © 6.6 21-38

APPENDIX.. ©6@e6@8@€€8 6606 8 © 06 @ 0 « @ Al -~A49

TABLE OF AUTHORITIES

CASES

Abex Corp.,Stanray Products

Plant and United Steelwork-

ers of America, Local Union

No.2483, 79-2ARG Para.8614 ... 30

Bennett v. Norban,396 Pa.94,15]

Bi 2G ETE CESSES) ccceveeaeceeces 36

Bivens v. Six Unknown Named

Agents of Federal Bureau of

Narcotics,403 U. S. 388, 395

Rg ee ee ee 30

Burdeau v. McDowell, 256 U.S.

465 Be) er 24,25

Com. v. Raldwin, 282 a. Super.

82, 422 A.2d 838(fn.11) (1980). 24

Com. v. Borecky, 277 Pa. Super.

244, 619 A.24 753 (1966) «.. 25

COM. v,. Dembo, 451 Pa. 1, 301

A. 2G GES CIS7TS) wccccceesecs 25

Pase

Com. vw. Dingfelt, 227 Pa. Super.

380, 323 A.2d 145 (1974)....... 26

Com v. Eshelman, 477 Pa.93, 383

As2G: O38 (1978) oc cscceesess inves

Com. v. Haves, 489 Pa.419, 414

A.2d 318 (1980)...ccseeeees hes 35

Com. v. Martin,300 Pa. Super 379,

446 A.2d 965 (1982)...eeeeeeee 26

Coolidge v. New Hampshire,403 U.S.

COS. SOE CLOTS cov cce sec qeece: 24

Corngold v. U.S.,367 F.2d l

ee see se ne 25

Elkins v. U.S.,364 U.S. 206

ee tee. 25

Frumento v. Unemployment Compen-

sation Bd. of Review, 466 Pa.

91. 451 A.24 €31 (1976)...... 24

In Re "B",482 Pa.471, 394 A.2d

BUG CEOTEN i ccc canoe kes vecess 35

In Re Mack, 386 Pa.251l, 126

36

A.2d 679 (1956)...--- seovcecees

— & «

Page

Jenkins v. Dell Publishing Co.,

eat F.2G 447 (C.A.36,1958) .... 37

Katz v. U.S.,389 U.S. 347 (1967). 29

Knoll Associates,Inc. v. Fedural

Trade Commission,397 F.2d 530

a ee 25

Lustig v. United States, 338 U.S.

pe Oe r

Monroe v. Pape, 365 U.S. 167

Oe ec chek eee ekess 31

Mt. Healthy School Dist.v. Dovle,

429 U.S. 274 CUTE! bale ieeeecs 32

National Vendors and Internation-

al Association of Machinists

and Aerospace Workers District

No.9. TO"SZARD Para. 8356...ccces 30

Marsh v. State of Alabama, [26 UW.

—

a ee ee aes 28,29

Raible v Newsweek, Inc., 341 F.

Supp. 804 (W.D.Pa. 1972)....... 37

Rochin v. California,j«<c U.S.

8 Eee eae ee re ae 3]

Sherbert v. Verner, 374 U.S. 398

oe 5 ae

Stapleton v. Superior Court of

Los Angeles County, 70 Cal.2d 97,

t

73 Cal.Rpr.575, 447 P.2d 967

CLOGS ace c sds swsseesctvceseves

Thomas v. Review Board, 450 U.S.

707 e080

Walter v. U.S.,447 U.S.649 (1980)

White v. Com. Unemployment Con-

pensation Board of Review, 17

Pa. Cawlth. 110, 330 A.2d 541

se ck

Wright v. Com., Unemployment

Compensation Board of Review,

45 Pa. Cawlth. 117, 404 A.2d

792 Ph es | ee

tablocki v. Redhail, 434 U.S.

a ES ee er

CONSTITUTIONAL FROVISIONS

United States Constitution

Piret AMANCMONC. ..-ccceeces

~ Je

32

31

32

33

Page

Ween MD ec '0,16,18,

be es

Fourteenth Amendment............ 11.31

Pennsylvania Constitution

Beeacie I, Section @....... acewe 42:16, 18

STATUTE

Pennsylvania Unemployment Compensa-

tion Law,Sec.402(e),43 P.S.Sec.

Law Review Article

Prosser, Privacy, 48 Cal.L.Rev. No.

Se Re

Treatise

LaFave, Search and Seizure (West

Were eee, LETRF cukcctcs eenevee 24

Annotation

“Admissibility, in Criminal Case,

of Evidence Obtained by Scarch

by Private Individual," 36 ALR3d

33

ee ee

REPORTS OF OPINION

Pennsylvania Supreme Court rendered

no Opinion in petitioner's Petition for

Allowance of Appeal to it at No.285 W.D.

Allocatur Docket, 1982, merely an order

dated February 28, 1983, denying the

petition per curiam, of which petitioner

was notified by letter of its prothonotary

dated March 2, 1983 (A 2). Commonwealth

Court's opinion (A3-A27)has been reportec

at 450 A.2d 305 (1982), and has not yet

been reported in the official Pennsyl-

vania Commonwealth Reports (__ Pa.Cm.Cmwlth.

_)- Respondent Pennsylvania Unemployment

Compensation Board of Review entered its

Decision No.B-189375 (A27 - A311) on

November 3, 1980, and sent a copy to your

petitioner, but that Decision was not

otherwise reported officially, or to

the best of your petitioner's knowledge,

unoficially. Pennsylvania Unemployment

Compensation Board of Review Jean M.

Warwick rendered her Referee's Decision

at Appeal No. 60-6-B-289 (A-31-A34) on

July 21, 1980, and served a copy on your

petitioner, but her Decision was likewise

not elsewhere reported officially or un-

oficially to the best of your petitioner's

knowledge.

GROUNDS ON WHICH JURISDICTION INVOKED

Pennsylvania Commonwealth Court's judg-

ment sought to be reviewed was dated and

entered September 17, 1982, and Pennsyl-

vania Supreme Court refused allowance of

appeal on that decision on February 28,

1983. Petitioner believes this Court

has jurisdiction to grant him certiorari

under 28 U.6.C. Boc.1Z257(3).

CONSTITUTIONAL PROVISIONS AND STATUTES

United States Constitution

Amendment 4

Unreasonable searches and seizures.

The right of the people to we secure

id «-

in their persons, houses, papers, and

effect, against unreasonable searches and

seizures, shall not be violated, and no

Warrants shall issue, but upon probable

cause, supported by Oath or affirmation,

and particularly describing the place to

be searched, and the persons or things

to be seized.

Amendment 14

Section 1. Citizens of the United States.

All persons born or naturalized in the

aticnk Skates, and subject to the juris-

diction thereof, are citizens of the

ited States and of the State wherein

they cide. No State shall make or

enforce any law which shall abridge the

privileges or immunities of citizens of

the United States, nor shall any State

deprive any person of life, liberty, or

oroperty without due process of law; nor

deny to any person within its jurisdic-

- 2e

tion the equal protection of the laws.

Pennsylvania Constitution

Article 1, Section 8

The people shall be secure in their

persons, houses, papers and possessions

from unreasonable searches and Selzurea,

and no warrant to search any place or

to seize any person or thing shall issue

without describing them as nea) ly as may

be, nor without probable cause, supported

by oath or affirmation subscribed to by

the affiant.

Pennsylvania Unemployment Compensation

Law, Sec. 402(e), 43 P.S. Sec.802(e)

Ineligibility for compensation

An employe shall be ineligible for com-

pensation for any week

(c) In which his unemployment is due to

his discharge or temporary suspension

from work for willful misconduct connect-

ed with his work, irrespective of whether

Or not such work is “employment" as

— oe

defined in this act; and . . .(as amended)

STATEMENT OF THE CASE

Petitioner was subjected to a "bucket

search" (his employer demanded that he

open his lunch bucket for inspection as

he went out the plant gate at end of

shift), for the first time in 29 years

with employer. He had indicated to em-

ployer that he objected to such a search

as an unwarranted invasion of privacy

and inetied accusation of theft and

deprivation of his legal and constitu-

tional rights. This particular search

was called because an electric drill was

missing but the drill was found before

the search began, and no one at all, mucl

less petioner, was suspected of having

employer's property on his person or in

his lunch bucket. Confronted by employ-

er's uniformed guard at the plant gate

with a demand that he open his lunch

bucket for inspection hv the guard, peti-

tioner declined to open the bucket, raised

it high in the air so thut the guard could

not get to it. anc attempted to continue

on his way out the plant and home. Peti-

tioner was taki by force to the guard

house and required to give his badge nun-

ber, and later suspended trom work for

five days for failure to Open his lunch

bucket. He applied fer unemployment

compensation for the suspension period

and was refused at the first Jevel on

ground of wi llful misconduct. He appeal-

ed, Referee Ruth Warwieh awarded him

compensation tor ft he period, the employ-

er appeated: Pron hor skostinion to the

Pennsylvania Unemployment Compensation

Board of Review (the Bourd)and the Boarc

reversed. Your petitioner appealed to

the Commonwealth Court, hich uphela tne

Board by decision and ©} inion entered

september 17, 1382. Your petitioner then

petitioned Pennsylvania Supreme Court for

allowance of appeal, and that petition

was denied February 28, 1983. ‘This

Petition follows.

The evidence in this case was cener-

ated at a hearing September 11, 1980,

before Referee Jean M. Warwick, an init-

lal hearing officer of the Pennsylvania

Unemployment Compensation Board of Peview.

Referee Warwick directly asked petition-

er, "Mr. Simpson, can you tell me please

in your own words why you refused to

Open your lunch bucket that day?"

Petitioner replied, “Because I felt that

it was a violation of my rights. I felt

that they hed no right to act like |! am

some kind of a criminal just because I

work for them .. . when it comes to this

search I was .. . it was right in

the Constitution anu i knew that they

nm HO Triart tO act like this .

- 15 «

and I felt I am not going to let them

do it." (A48) At that same hearing, em-

ployer's security guard Lutz, when asked

what reason petitioner had given Lutz for

refusing to open his lunch bucket, indica-

ted "(H)e said it was his constitutional

rights and he didn't have tc let anvone

take it and see it." (A44). Petitioner

also provided Referee Warwick a brief

(A34-A4l1) and stated there (A38-A39)

"Claimant had a right under the Fourth

Amendment to the United States Constitution

and under Article 1, Section 8, of the

Pennsylvania Constitution, and under

Article 1, Section 8, of the Pennsylvania

Constitution, to ve free from an unreason=

able search or seizure" and that “he

had long and consistently, before any

questions arose, given his employer

notice that he asserted a privacy right

in his lunch bucket ana possessions."

- lo -

In her Decision ot September 15, 190u,

Referee Warwick indicated "The Referee

also believes the claimant's conduct as

to his refusal to participate in the

‘lunch box search' of May 29, 1980 was

reasonable and with ‘good cause' because

of the claimant's strong conviction that

to do so would be a violation of his

human rights to vrivacy. Therefore,while

the Referee in no questions (sic; appar-

ently, in no way guestions) the employer's

right to suspend the claimant, she cannot

hold that the suspension was due to wil-

ful misconduct in connection with the

claimant's work." (A34).

The Pennsylvania Unemployment Com-

pensation Board of Review conducted its

own review based solely on the Transcrift

with no briefing or argument, specifical-

ly concluding that "We hold in this case

the claimant's refusal to abide by the

role was not justified ...” and *that

- 17 «

the practice of the employer outweighed

any alleged violation of the claimant's

right of privacy. Consequently, benefits

must be denied since claimant's action is

tantamount to willful misconduct." (A30).

In the brief your petitioner filed

with Pennsylvania Commonwealth Court,

at pages 12 and 13 thereof, he indicated

"Claimant had a right under both the Fourth

Amendment to the United States Constitu-

tion, ahd under Article 1, Section 6, of

the Pennsylvania Constitution, to be free

from an unreasonable search or seizure"

and, at page 14 thereof, that "Even

beyond the above-stated constitutional

right, claimant had a right in his be-

longings, including his lunch bucket

petitioner

" AsAhad indicated to the Referee

(A38-A39)

in his brief, which was also pefore the

Pennsylvania Unemployment Compensation

Board of Review as part of the record

or its Decisicn, “the unemnlovment

-1)8-

EO ee

entitlement question is ‘not whether the

employer had the right to discharge for

the questioned conduct of the employee,

but rather whether the State is justified

in reinforcing that decision by denying

benefits,'" quoting a desision of the

Pennsylvania Supreme Court.

Pennsylvania Commonwealth Court held

that your petitioner had neither a right

to be free from his employer's search,

nor a right of privacy, nor a right to

unemployment compensation benefits. At

page 12 of the Opinion (A24-A25) it sent

your petitioner in typewritten form, not

yet officially reported in Pennsylvania

Commonwealth Court Reports, but appearing

at page 312 of the unofficial report

beginning at 450 A.2d 305, that Court

indicated that "However sincere the clair'-

ant may have been in his perception of

his legal rights, we must conclude that

his mistake in that respect was not the

ui =

kind that can he allowed to exonerate hin

and preserve his eligibility for unemploy-

ment benefits. his conduct was purely

volitional and disregardful of his em-

ployer's interests. There is nothing in

this case to indicate that the claimant's

beliefs about his legal rights were other

than self-induced. If he wished to gamble

on the accuracy of his personal juris-

prudence, the Unemployment Compensation

Funds should not be required to subsidize

his misconception."

Again to Pennsylvania Supreme Court,

at page 4 of his PETITION FOR ALLOWANCE

OF APPEAL to that Court, your petitioner

had alleged that the decision to deny

him unemployment Compensation venetl pts

was state action involving Pennsylvania

in sanctioning and reinforcing a lawless

search and an invasion of his privacy

and claiming at page © of that same

Petition, that "Vetitioner believes

~ 20 =

that he is not alone among Pennsylvania

workers in valuing the same dignity in

his work and the conditions of that work,

and demanding the same respect, as he

enjoys in public and in his home."

ARGUMENT

Pennsylvania Commonwealth Court found

as facts that your petitioner had never

before in 29 years been confronted with

this employer's demand to submit to bucket

search, and had objected to the practice

as violating his "human and constitution-

al rights, including his right of privacy.”

(A 9); that employer had never issued

written demand to its employes to submit

to such scurches, though it had issued

a manual of employee instructions (A7);

that petitioner's union contract did not

agree to such searches (A7); that there

waS no suspicion of any employee under-

lying his search (A6) yet that “the

‘4

Purpose of the insnection,or searcn,

was to see if any of the employes stopped

were leaving with tools or other property

belongint to the company." A); and that

your petitioner protested to employer's

security guard "That the company had no

right to subject him to such a search,"

whereafter the guard engaged in pushing

and shoving with your petitioner and

then took petitioner to a nearby gate-

house (A5). In addition, thoudh it was

not mentioned by the Commonwealth Court,

the Referee's hearing Transcript (A43)

shows the following interrogation of

employer's chief of plant security, one

Shellenberqer:

Question by Petitioner's lawyers” Your

guards, what's their relationship with

the local police? Have you ever called

in the police to assist your guards?"

"At times,

Witness Shellenbergcr answers:

yes."

22 =

Employer's purpose was to search tor

and find evidence of theft, in the prosecu-

tion of which the Commonwealth would be

essential. There was no reason to suspect

petitioner of that theft, or any of his

fellow employes on their way out the plant

gate. Even the prior assistance of the

police in these escapades and their avail-

ability at a phone call, show state action

and a joint enterprise. Some would say

that the later decision to deny petition-

er ueeployeant compensation benefits was

a form of state action hardly more direct,

i

but at any rate petitioner is sure that

decision was independent state action.

As Pennsylvania has it, in unemployment

compensation procecdings the issue is

"not whether the employer had the right

to discharge for the auestioned conduct

of the employee, but rather whether the

state is justified in reinforcing that

decision by denying benefits" for

« 2

unemployment compensation; Firumento v

Unemployment Compensation Board of Review,

66 Pa. 81, 3231 A.2d Gd at 634 (1976). If

Pennsylvania may withhole benefits necause

vetitioner did not submit to a demand it

surely could not have made upon him, peti-

tioner says he will be whipsawed by Penn-

sylvania into surrender of his federal

and Pennsylvania constitutional rights

to freedom from unreasonable searches

and seizures and to privacy, and further

be forced to submit to the tort of

invasion of his privacy, on pain of waiver

of unemployment compensation benefits.

Private searches remain largely out-

side the pale of exclusionary protection;

Coolidge v. New Hampshire, 40} U.S. 444,

488 (1971); Burdeau_v McDowell, 256 U.S.

465, 476 (1921); Com. v. Baldwin, 282

Pa.Super.82, 422 A.2d 838, 846(fn.11)

(1980). In sue cases state involvement

24 -

may confirm exclusionary protection. Lustig

v. United States, 338U.S.74, 78-9 (1949),

Elkins v. U.S.,364 U.S. 206, 223 (1960),

Knoll Associates, Inc. v. Federal Trade

Commission, ae? ©.26 520, 3535 (C.A.7,

A90G)? GCorngoliad v. U.S., 367 F.2d i, $

(C.A.9, 1966); Com. v. Eshelman,477 Pa.93,

383 A.2d 838, 841-2 (1978); Com.v. Dembo,

Si Pa. t, 301 A.2a 689, 693 (1973);

Stapleton v. Superior Court of Los Angeles

County, 10 Cai.4aa 97, 73 Cal.@or. 575 377,

447 P.2d 967 (1969). So for the ratifica-

tion in advance by a police officer of

search by a private person, Com. v.

Borecky, 2/7 Pa. Super. 244, 419 A.2d

Toa, to (19860). TOO, expansion by

’.B.I. ,agents of a private search is

state action deserving exclusionary

protection, Waiter v. U.S., 447 U.S.

649, 657 (1980). But these are the

exceptions that still prove the Burdeau

ere pn?

+

rule -- when private ine@ivicuals vi

lial ant

ee ee ee

oe

Fourth Amendment search rights, exclusion-

ary remedics are denied the victim.

Pennsylvania comsiders scurch by a

private security employee to be a vrivate

search, as to which the person searched

has no exclusionary remedy; Com. v Martin,

300 Pa. Super. 379, 446 A.2d 965, 968

(1982). So for even state enployes such

as school officials; Com _v. Dingftclt,

aa? Pa. Super. 380, 323 A. 20 145, 147

(1974).

Commonwealth Court thinks (A200) that

”.

petitioner's corporate employer is "a

private party.” Petitioner thinks not -:

it is wholly a creature of the state of

its incorporation, Geriving vm owing

its being to that state as surely as

petitioner owes his to the Almighty.

That is why we are careful to distinguish

between artificial and natural persons.

Pennsylvania ought not to be allowed to

require vour rctitioner’s submission,

- 26 -

Las

On pain of forfeiture of unemployment

compensation benefits, to either a natural

person or, to a fortiori ,f a sister state,

when it would be prohibited by our constitu-

tions and laws from requiring that same

submission to its own search.

Pennsylvania Commonwealth Court thinks

(A22) that in accepting employment petition-

er gave up his rights to freedome from un~

reasonable searches, along with what that —

Court takes to be his merely common-law

rights ‘to privacy, rights which your

betitioner says are also federal and

Pennsylvania constitutional. But the

employer never even asked petitioner to

surrender those rights, directly or through

petitioner's union, nor was it even will-~

ing (Réferee's Transcript, T 36, A46)

to declare to petitioner and his fellow

employés in writing a demand for such.

surrender. Indeed, had there been any

such surrender, it would have run to the

benefit of employer, but not of Pennsyl-

vania to relieve the Commonwealth of its

unemployment compensation obligations to

petitioner; and beyo;nd that, Pennsylvania

ought not to be allowed, through its ad-

ministrative agencies and courts, tO ex~

mand upon an implied contract between

petitioner and his employer for the pur-

pose of relieving Pennsylvania from those

obligations -- especially here, where

there is a written contract, detailed ana

hard bargained between employer and

United Steelworkers, covering that

employment.

The wore an owner, for his advantage,

opens up his property lor use by the pub-

lic in general, the more do his rights

become circumscribed by the statutory and

constitutional rights of those who use

it.* Marsh v. State vo. Alabama, 326 U.S.

501 ’ evene ( 1Sa¢ ) . “*"OW thc Os cae ea coe

« 28 -

property, the factory, which your peti-

tioner used to earn his daily bread was

his corporate employer -- but even that

is a fiction, and the ultimate owner's

are that employer's stockholders. Precious

few of them will likely use the property

at all, and most of those in the capacity

of employes -- some doubtless powerful

management employes, by virtue in part of

ownership of a bit of that stock, but

nonetheless all employes just as your

petitioner was. It is those employes

who physically use the factory to earn

their livelihood, the ultimate owners

"using" it only to earn the profit they

hope their investment brings. Since

sece VV. U.5., 389 U.S. 347 (1967) it has

been a truism to say that the Fourth

Amendment protects people, not places.

It protects those people at the kinds

of places Marsh had in mind, and your

. - «

petitioner contends he took with him a

moagicum of dignity into the fact Ory, in

the form o!f his search ane privacy rights.

At least some labor arbitration decisions

have aqrocd with that, Abox Lor. , stan a

Products Plant ana United Steelworkers of

America, Toca l Union No. £48 3 , 79=-2ARB

Para.8614, especially where search of an

employee's possessions combined with

Assault upon the employee are complained

Of, National Vendors and international

Association of Machinists and Acrospace

Workers District No.9,

Violation of Fourth Amendment riahts

has been sufficient to ground a cause of

action, Bivens v Six Unknown Named Aaqents

oe Peet) Patties «hl Niro iat, a3 1

ime, 29976 (1971) tholding also, at race

395, that States may not authorize at

e the

least federal ayents to violat

rPourth Amomimont . i: foul |

retroactively at that, to authorized his

employer). With a little help from the

Civil Rights Act, the Fourth Amendment

through the Fourteenth also served as

ground tor damage claims against state

Ort2cere, Monroe ¥. Pane, 365 U.S. 167

(1961). Your petitioner of course hopes

that what he sees as Pennsvlvania's at-

tempt to authorize his employer to vio-

late his search and privacy rights, or

at least its punishing him [or not

submitting to those violations, shocks

the conscience of this court and will

cause it to hear him; Rochin v. Californ-

aa, 342 U.S. i635 (1935<¢).

before its decision against yout

peliatlioner, Pennsylvania at least had

some trepidation about withholaing un-

employment compensation benefits to an

employee terminated for simple refusal

to submit to search; White V Con.,

Leite logical CCmpenbatson pudtu OL Ke-

Wiow, 17 Va. Cawlth. 1130, 339 A. td $4)

(1975), carefully grounding refusal of

unemployment benefits on theft of

employer property rather than refusal

to submit to search.

This Court has been willing to pro-

tect unemployment benefits against viola-

tion of certain at least of the Bill of

Rights, chiefly First Amendment free

exercise (‘'homas v. Review Board, 450

0.5. 207 Uroeii, Ssherbert v Verner, 3/74

LU.S.398 (1963)) and free speech (Mt.

Nealth City School District v. Doyle,

429 U.&. 274 (1977), and Pennsylvania

appears to agree (Wright v Com. ,Un-

emp boyment Componiat tom Board ot Rewiow,

Ss Va. Cowlth., 147, €64 Ai. 2d Fol (1979).

Petitioner contends, and will ampliry

later, that the privacy rights he

seeks to have protected aqainst Pennsyl-

Vania are themselves penunmbral emana-

tions oi tie “11! ef Fights ceneral ly,

but in addition he thinks it wrong that

Pennsylvania may condition unemployment

benefits on his submission to what are

Still violations of his right to freedom

from unreasonable search, violations from

which the Fourth Amendment would stay

Pennsylvania's hand. The exclusionary

rule itself is remedial, designed finally

to provide remedy for what were admittedly

all along violations of constitutional

rights, violations whether performed Dy

the State or private individuals. Consider-

ations of prophylactic effect, and possi-

bly allocation of enforcement resources,

dictated that the exclusionary rule

reached mainly state activity, it being

considered that only there would there

be real deterrent effect. As is cogent-

ly pointed out however, in an Annotation

“Admissibility, in Criminal Case, of

ividence Obtuinea by Search by Private

nNGiViguel,” 36 ALRGd 553, “It is at

least arguable, however, that the force

of this rationale breaks down in connec-

tion with cases involving seizure of evid-

ence by private investigators or other

security officers who act for the very

purpose of obtaining evidence of crime

and often with professional knowledge

and skili.* f(id. at 558). Accord, Larave,

Search and Seizure (West Publishing Co.,

1378), Sec. 1.6. Certainiy here if tris

employer were charged with incidents of

compensated unemployment brought about by

violations perpetrated on its employes

by its uniformed security force, there

might be a considerable deterrent effect

upon it rippling through the industry and

among employers generally once word

spreads.

Petitioner claims he had a right of

privacy in his lunch bucket. A right of

privacty ig now recoanized under the

tho

—

federal constitution, grounded in the

Bill of Rights, and indeed older than that

venerable document, Zablocki v. Redhail,

434 U.S. 374, 384, (1978) though its bord-

ers are not yet fully marked (id., 385).

Pennsylvania recognizes that right, find-

ing it, inter alia, in the First, Fourth,

and Fifth Amendments to the United States

Constitution, ane “in the penumbras of the

Bill of Rights", Com. v. Hayes, 489 Pa.

419, 424 A.28 318, 325 (23960); In Bee's’,

602 Pa. 471, 394 A.20 419, 424 (1978)

Some of the development of that right is

often said to have been at common law,

Prosser, Frivacy, 48 Cal. L.Rev. No.3,

p.383 (Aug.1960}, and receives its cur-

rent formulation at Restatement of Torts,

Second, Sec.652A. That section covers

some of the violations petitioner feels

he suffered, chiefly an unreasonable

intrusion and being placed in a false

light. Petitioner himselt put it chat way in

response to the Referee's questions (A48)

"I feit that they had no right to act like

I am some kind of a criminal just because

I work for them." Again, "But just to

qrab everybody and say .. . yey, we thinh.

you might be dishonest today, show us you

are not. In effect that is what you are

saying. You are saying we believe you

to be possibly a crook today and show us

that you are not."

Pennsylvania has long recognized that

privacy right, even obliging its courts to

protect a prisoner's right to privacy by

controlling photographing of him, In Re

Mack, 386 Pa. 251, 126 A.2d 679, 683

(1956). It has specifically held an

invasion of privacy the search of a

customer and her purse by store em-

ployes, Bennett v. Norban, 396 Pa.94,

151 A.2a 476, 479 (1959). Federal

courts have also recognized and enforced

- 36 =

that right when dealing with Pennsylvania

law, Jenkins v. Dell Publishing Company,

251 F.2d 447 (C.A. 3d, 1958) Raible v.

Newsweek, Inc.,341 F.Supp. 804 (S.D. Pa.

1972) «

Your petitioner asks this Court to

notice, in deciding whether to hear hin,

that the money stakes in this action,

five deve of unemployment compensation,

eal Gaver reimburse for the long

journey to this Court. The real grail

of his guest is dignity and respect for

himself and his fellow workers. A person

must Work for his or her and her family's

bread, and is counted a better citizen

for doing so. That work is a public

function and benefit, done for the most

part in public. The Constitution and

laws are the rules of our public life

and reach all its corners.

As a nation we have been specially

~ 37 =

blessed to realize that there is nothing

inherently demeaning in that work. No

employer must receive the state's assist-

ance to make it so.

APPENDIX

CONTENTS Page

Pennsylvania Supreme Court's

Announcement of Denial of

Petition for Allowance of Appeal A2

Opinion of Pennsylvania Common-

WOERLEtH COULC. ccc nnsscesse isos A3-A26

Order of Pennsylvania Common-

wealth COuUrt csccccccesevsesess A26-A27

Decision and Order of Pennsyl-

vania Unemployment Compensation

A27-A31

Remee He BWI, 64k ee aeees

Unemployment Compensation Referee

Warwick's DeciSiOn ...eeeeeoes » A3I1-A34

Petitioner's Brief Addressed to

Maferee WarwiGk ..csecessaecceess AS4-AGl

Excerpts from Transcript of

Testimony before Referee

eoee Anm€2-A4GS

Werte. Cg cee eee eee eee ee

The Supreme Court of Pennsylvan

western District

Car: Rice, Esc.

Pro honotary BQGi City Cts

ee Blidg.,Pgh.Pa

Irma '.Gardper . iat ed.

eputy Prothonotary 15219

Claude V. Falkenhan,ksq.

201 Spruce Strect

Zelienople, PA 16063

In Re: Civde Simpson vs. Com. of Pa.,

} ! } . .

et al. NO.£59 wh Aliocatur Docaec,

L982

Dear Mr. Falkenhan:

‘

The Court has entered the fol lowing

Order on your Petition for Allowance ol

Appeal in the above-captioned matter:

ORDER OF COURT

"28 February 1983

Petition aeniec

Per.Curiar”

Very truly yours,

CR 331

cc: Charles Hasson,rsy.

Unemployment Compensation

Review,

Room 1010,Labor & Industry Bldg.

Harriepurg,PA 17121

Board of

Richard Thomas,€sa.

Brian Dougherty,Usq.

1

2900 Crant Buildino

Pittspurdgn, PA i>219

CLYDs: A. SIMPSON, ;: IN THis COMMON-

Petitioner : WeALTH COURT OF

Vs PENNSYLVANIA

COMMONWEALTH OF PENN-=-

SYLVANIA, UNEMPLOYMENT’:

COMPENSATION BOARD OF '

REVIEW,

Respondent

THE BABCOCK & WILCOX

COMPANY, : y

Intervenor bd No. 3000 Cc .C.i386e¢

BEFORE: HONORABLE CENEVIEVEL BLATT,Judge

HONORABLE ROBERT W. WILLIAMS,JR.,

Judge

HONORABLE DAVID W. CRAIG, Judage

ARGUED: February 5, 1982

OPINION BY JUDGE WILLIAMS, JR.

Filed September 17,198<z

Clyde A. Simpson (claimant) has

appealed from an order of the Unemploy-

Ment Compunsation Board of Revicw (Board)

denying him benefits for a one-week period

that he was suspended from work. The

basis for the Board's order was its

conclusion that the claimant had been

suspended for behavior amounting to

A 3

“willful misconduct," under Section 402 (e)

of the Unemployment Compensation Law

(Law) .+

On June 2, 1980, Claimant Simpson

was Suspended frow his employment at the

Tubular~-Praducts Division of the Babcock

& Wilcox Company (Company); the period ot

actual suspension was to include the aates

June 3 through June 9,1980. The reason

for the claimant's suspension was his

refusal to permit a Company security

guard to search his lunch bucket.

When the claimant applied for unem-

ployment compensation, the office of Em-

ployment Security determined that he was

ineligible by force of Section 402(e) of

Cliet TaawWe Whe refered cisaqgrveed with Cte

determination, and awarded benefits. It

was the referee's conclusion that the

claimant had “good cause" for refusing

to be searched. iiowever, ona further

A 4

appeal by the Company, the Board revers-

ed the referee and denied the claim for

benefits.

The incident that caused the clain-

ant's suspension occurred on Muy 29,1980,

after he had completed his work shift that

day and had started to leave the Compass

premises. As the claimant and several

other employees approached the exit

gate, a plant security guard stationed

there stopped the group and ask them to

open their lunch buckets for inspection.

The purpose of the inspection, or search,

was to see if any of the employees stopped

were leaving with tools or other property

belonging to the Company.

Upon being Comtronted by the quard,

the claimant refused to open his lunch

bucket, protesting that the Company had

no right to subject him to such a search.

The claimant then attempted to walk past

the guard and out the gate; that attempt

'

A 3

led two some degree of pushing and shoving

between the two ren. Minally, the quar

took the claimant to the nearby gatehouse,

to obtain from him initormation neewed to

report the incident. The claimaint never

did allow his lunch bucket to be searched

that aay, with Che consequence being his

suspension a few days later.

The Company's decisson CO Conduct the

May 29 search of omployee lunch buckets

!

was initially prompted by a report that Gay,

from a plant official, that a Company axiii

was missinaq. However, before the end of the

claimant's work shift that day, the drill

hac been found. ‘The the tool had been re~

eovered was knewn to the interested plant

oliiecials and security personne!, inetua-

ing the guard that was to later contront

the claimant. Nevertheless, the involved

slant officials decided to proceed with

the bucket search for the drill, ane had

not bold a®routine® search in a long time.

A 6

Company witnesses admitted to the

referee that, so far as they knew, the

employer had never issued any written rule

Or notice concerning searches of employees

Or thelr possessions. Although the Company

issued a manual of employee instructions,

which had gone through several printings,

that publication is entirely silent on the

matter of searches. Equally silent on the

question was the labor-management agree-

ment in force between the claimant's

union and the Company at the time of the

incident here involved.

Despite the lack of any written plant

rule on the subject of searches, the Com-

pursued a

pany has, for several years,

practice” of conducting periodic, at-cf.un-

dom searches of employee lunch buckets.

Under the “practice,” when a bucket

search is ordered it is conducted at the

slant exit gate, as the employees of a

civen shift are leaving work for the ca;

Af

and are actually on their own time. Dur-

ing the period that a search is in cifect,

a plant guard will ask each euployee pass-~

ing through the gate to open his or her

lunch bucket, so that the guara Cun see

whether any Campany property is contained

therein.

According to the Company's witnesses

in theo instant case, the "practice oO!

having random bucket searches 1S des igqn-

ed to"keep the employees honest," even

when there is no specific belict that an

actual theft is being attenpted. As for

the search oO lay 29, i980, the Company's

evidence before the referce gave no indica:

tion that, at the time the search was

orderca to proceed, the employe had wany

specific cause to believe that the claim-

ant or any other worker was trying to

depart with Company property.

At the time: vi the incidcnt in ques-

sen @n..- 1c, eu -wyx

tion the claimant kad o«

A 8

Company for about 29 years. Although he

himse’f had never, prior to May 29,1980,

been subjected to a bucket search, he was

undeniably well aware of his employer's

“practice” of having them. In telling the

referee why he resisted the search of May

29, the claimant expressed the feeling thet

a search of his lunch bucket by the employ -

2r would have violated his human and con-

$titutional rights, including his right

of privacy. The referee found that the

claimant's refusal to allow the search

vas motivated by a strong conviction that

the search cid violate his right of privacy.

And, based on that finding, the referee ccn-

cluded that the claimant had “ good cause"

.Or resisting the employer's search. It

was upon that reasoning that the referee

exonerated the claimant from the charge

of wil’ ful misconduct, and awarded him

benefits.

The Board, in reversine the referee,

A9

determined that the Company's lunch bucket

searches are a “reasonable exercise of the

employer's prerogative." The Board also

concluded that the claimant had failed

to justify his resistance to the attempted

search of his kucket. Regarding the latter

conclusion, the board held that the Com-

pany's reasonable interest in having the

bucket searches outweighed the asserted

infringement of the claimant's right of

privacy. Thus, the Board concluded that

the claimant was guilty cf willful mis-

conduct as a matter of law. However, in

the process of reaching the above con-

clusions, the Board adopted the ref-

eree's finding as to the motivation for

the claimant's defiant response lo the

search. The Board, as had the referee,

made a specific factual finding that:

The claimant refused to participate

in the ‘lunch [bucket] search' because

of his strong conviciion that it was a

violation of his human right to privacy.

A 10

The term “willful misconduct" has nc

statutory definition. However, the Suvreme

Court of Pennsylvania has defined the term

as comprehending an act of wanton or will-

ful disregard of the employer's interest,

a deliberate violation of the employer's

rules, a disregard of standards of behav-

ior which the emplover has a right to ex-

pect of an emplovee, or negligence, indica-

ting an intentional disregard of the em-

ployer's interest or of the employee's

duties and obligations to the employer.

McLean v. Unemployment Compensation Board

of Review, 476 Pa. 617, 383 A.2G 533 (1978);

Frumento v. Unemplovment Compensation

Bourd of Review, 466 Pa. 81, 351 A.2d

631 (1976).

It is well settled that an employee's

direct refusal to comply with a request of

his employer can constitute willful mis-

conduct under Section 402(e) of the Law.

+

¢.-G., Semon v. Unemovlovment Comrencation

A ll

Board of Revicw, 93 Pa. Couamonweal th

Ct. 501, 417 A.23 1343(1980); Kresge

v. Unemployment Compensation board of

Rovicw, 46 Pa. Commonwealth Ct. 78, 40%

A.2G@ 1123 (1979). However, before we can

decide whether Such noncompliance amounts

to willful misconuuct in a particular

case, we must evaluate not only the reason-

ableness of the employer's request unuder

the circumstances, but also the employee's

reason for noncompliance. If the employee's

behavior was justifiable or reasonable

under the circumstances, it cannot be con-

sidered willtul misconduct. AcLean;

Frumento,. [In other words, 1f there was

'

®"good cause*® for the employee !s action, he

sannot be deemed guilty ot williul mis~

conduct. McLean.

In an unemployment compensation case

involving a charae of willful misconauct,

the employer sears the burden of proving

A te

the charge. £.g., LeGare v. Unemployment

Compensation Board of Review, Pa. P

444 A:2d 1151 (1982). But, if the claim-

ant seeks to justify the behavior in isssue

Or to show that it was reasonable, he must

bear the proof burden in that respect.

B.g-, Devine v. Unemployment Compensation

Board Of Review, 59 Pa. Commonwealth Ct.

318, 49 A.2d 1243 (1981); Lake v. Unem-

ployment Compensation Board of Review, 48

Pa. Commonwealth Ct. 138, 409 A.2d 126

(1979); Holomshek v. Unemployment Compen-

Sation Board of Review, 39 Pa. Commonwealth

Ct.903, 395 A.2d 708 (1979).

Equipped with the foregoing legal

orinciples, we now consider their applica-

tion to the case at bar.

The Company certainly has a valid

interest in trying to prevent its employ-

2es from departing the plant premises

with Company property. It seems clear,

C.

that tke emrlover is entitle

A i3

moreover,

to pursue reasorahle security measures to

prevent or reduce the incidence of such

thefts. In our view, the bucket searches

that the Company concucts From titnm: to

time do not unduly Durden the employees.

According to the overall testimony in this

case, the “routine” oucket searches are

conducted only occasionally. Anca, when

a “routine” search is in effect, it

Simply requires the departing employees

to open their buckets or containers as

they pass through the plant gate. When

such €@ search is in effect, it is not

directed at any particular person; rather,

every employee going through the gate

during that time is asked to comply. In

sum, the bucket searches are inl requent is

conducted, objectively executed, and

done with what would seem to be little

inconvenience to the emvloyees. As

for the Company's rancomness in ordering

these end-of-shift searches, it 1S con-

ceivable that the very uncertaintly as to

A 14

when a.search will be held could serve to

discourage employee larceny.

When we weigh the security interest

the bucket searches are intended to serve,

against the slight degree of inconvenience

Or intrusion they actually entail, we are

drawn to the conclusion that the Company's

bucket search"practice" is a reasonable

one, at least on that scale of weasure-

ment.

before this Court, the claimant seeks

to justify his alleged misconduct by re-

lying on the search and seizure pro-

visions of the Fourth Anendment of the

United State Constitution and Article l,

Section 8, of the Pennsvivania Constitu-

Lion. He usserts that the employer's

attempt ‘to search his lunch bucket violat-

ed the above constitutional provisions,

and that he thugs had a legal right to

resist the search. Taxing his position

A ld

one step further, the claimant argues

that for the state to deny him unemploy-

nent benefits because of the conduct in 1¢sue,

would amount to state action that deprives

him of the rights guaranteed vy the afore:

said constitutional provisions.

It is firmly settled that the Fourth

Amendment of the United States Constitution

applies only to the actions of governmente |

authorities, and is inapplicable te the

conduct of private parties. Walter v.

United States, 447 U.S. 649 (1°80); Burdedau

v._McNowell, 256 U.S. 465 (1921); Cominon~

Wealth v. Borecky, 277 Pa.Superior Ct.244,

419 A.2d 753 (1980). The same is true of

the search and seizure provision in the

Penns [vania Constitution, Commonwealth

V. Dingfelt, 227 Pa. Superior Ct.. 380,

323 A.2d 145 (1974); see Pa. Const. art I,5cc.

25. It follows, then, that the right the

claimant secks to estawlish against his

a vrivate entitv, is not a rioht

empoloycr,

that arises from the constitutional provi-

sions the claimant relies on. Moreover,

Since the claimant's rights against gov-

ernmental searches are not here involved,

it cannot be argued validly that a denial

of unemployment benefits, because of his

resistance to his employer's search, will

impair his constitutional rights relative

to intrusions by the government itself.

True, there have been decisions which,

based on specific guarantees in the Bill of

Rights of the federal constitution, have

invalidated a state's denial of unemploy-

ment compensation. For example, in Sher-

bert v.. Verner, 374 U.S. 398 (1963), the

United States Supreme Court held that the

refusal: of a Seventh-day Adventist to work

on Saturdays, because it was her sabbath,

could net be deemed a disqualifying re-

fusal tO accept suitable employment. ‘The

basis far, the Court's decision in Sherbert

wars that & denial of unemployment benetits,

because Of the claimant's refusal to work

on her sabbath, violated the freedom oft

religion specifically guaranteed by the

Free Exercise Clause of the First Amend-

ment. Recently, in Thomas v. Review Boerd,

450

Indiana, Employment Security Division,

U.S. 707 (1981), the Supreic Court aga.

A 17

applicd the Free Exercise clause to invai-

idate a denial of unemplovment benefits.

lu tthomes , the clatmant had votun=

taralyvy terminated nis employment alter

his employer transferred him to armaments

production. The claimant was a Jehovan's

Witness, and the tenets of his religion

prohibited him-trom participating in the

production of arms; tor that reason he

resiqned from his job. The Inaicana

compensation authoritics decided that

the claimant's religious seruples did

not provide “good cause" for quitting

his job, and denied him benefits on that

ground. The United States Supreme Court

held that for the state to deny the clala-

ant benefits, because he had honored his

religious principles, violateu his con-

stitutionally guaranteea freecom cf rela:

qion. The Court reasoned that a denial

Poy ee 0s Tce es ae

Parpetecs. cote ccmpobenyeres Far ccbtenarres boost werectn Uns

geshissicos cstel his jobs, with tin? pice? Or

choosing che tormer veing the Loss o!

state benefits. The Court furthe!

reasoned that such a state-coerced choice

would unduly burden an cimploye ion thane

pics Pesb peppers bee l bert ci

A It

Another instance of applying the First

Amendment to invalidated a denial of un-

employment benefits was our decision in

Wright v. Unemployment Compensation Board

at Reviow, 45 Pa. Commonwealth Ct. | L7, 404

A.2d 792 (1979). That case involved the

constitutional right of free speech. We

aeld that the claimant's public criticisn

of his government employer, on matters of

2ublic interest, could not amount to dis-

qualifying willful misconduct; because,

the criticism was the kind of speech that

is protected by the First Amencment.

In Sherbert, Thomas and Wright , res-

2ectiverzy, the claimant's course of action

represented conduct that is the subject of

pecitie constitutional protection. The

3ill of kights of the federal constitutioi.,

oy virtue of the First Amendment, bars the

jovernment from prohipiting the free exer-

tise of religion and from abridying the

those rights

[reeuom Of sveccn. Thus,

are ones that are constitutionally guarded

against substantial governmental cestraints

on their exercise. And, as the above cases

held, a state's denial of unemployment

benetits because a person has exercised

one of those rjghts is an impcrmissible

restraint.

As noted already, the claiment in

the instant case asseris that he has a

legal right to be free of searches by

his emplover, a private party. The clain-

ant also asserts that the riyht is one of

constitutional dimensions. Prom the

latter premisc, he further argues that for

the state to deny him bencfits, because

hey seought to enforce that right, would

Pmpetae oct Comb ituattomal by qear amber

freedom. ln sum, according to the claim-

ant, his resistance to his employer's bucket

search was constitutionally protected

conduct.

“Scueve-, reitrer the *ce“cral cone

A 20

Stitution nor our state constitution is,

of itself, a source of substantive legal

rights against searches by private parties.

That is, a person's right to be free of

Such searches is not the subject of a

guarantee in either constitut ion; at iecast

not in the direct sense that the Claimant

argues. A person's right to be free of

private searches of his property is one

that aries, for the most part, from com-

mon law property rights.* It would seem,

therefore, that the issue in the employer

search, or to stand on his head because

the employer so requests. The extent to

which the implied obligation to cooperate

WilD ber ciceomed to prevail aver an tb bowoc-

ly reserved common law right must, in ef:

fect, rest on a conclusion about the cir-

cumstantial reasonableness of the employ-

er's request and its burdensomeness to

the employee. Indeed, an employer's re-

euest cannot he deemed reasonahle ‘se &¢

A 21

will unduly burden an employee; and as

to such a request there can be no iiip 1 iec

obligation to cooperate.

But if an employer's request can bo

deemed circumstantially reasonable, after

considering the burden to the emloyee,

then the employee has an impliea obliga-

tion to cooperate. Although there might

be practical reasons that can justafy an

employee's refusal to cooperate, such

noncompliance Cannot be predicated upon

asserted common law personal and property

rights. As to employer requests that are

reasonable in the above sense, the employee

has waived those rights as a basis for

noncomptianeez; be waived them when he

voluntarily assumed the legal relation

ship with his employer.

In this case, the claimant deliberate-

ly failed to cooperate with his employer

by refusing to comply with a known, at-

plant security measure desianed, in its

A 22

own way, to protect the employer's prop-

erty. The measure was not one that was

used on a frequent basis, and when resort-

ed to, was not directed at any particular

employee. The most that the security

measure required of the claimant, as it

did of other employees, was that he open

his lunch bucket as he passed through the

plant exit gate. When we compare the em-

ployer's interest in having the measure

with the degree of burden to the employees,

we must conclude that the employer's re-

quest for cooperation was circumstantially

reasonable. That being so, the claimant

had an implied obligation to cooverate. In

an effort to justify his noncompliance, the

Claimant has relied on legal precepts that

ao not apply to the request the employer

made of him. Accordingly, the claimant has

failed to Gemonstrate "good cause” for

his refusal to comply. .

A «a

There remains one issue for Gur con-

sideration. fhe Board, with its almost

limitless powers of fact-finding, ceter-

mined, in offect, that the claimant

actually be! beved | he had a legal right

to resist the Company's bucket search. ‘Ve

must consider whether that tinding imputes

to the claimant a state of mind that

negates willful misconduct; even thougd!

the claimant has not raised the point in

this appeal. Whether or not an employee's

actions constitute willful misconduct is

a question of law subiect to judicial

review. E.g., McLean, supra. Therefore,

we must review the legal conclusion

Odeoat the Benard has drawn trom tts own

L ptaehdtneges. ‘Taylou v. Ulnrertite beryitertit Cet ipern=

sation Board of Review, 474 Pa. 351,378

A.2@ 8249 (LS77).

However sincere the claimant may

have been in his perception of his legal

rights, we mur’ conclute that “is mistake

A 24

in that respect was not the kind that can

oe allowed to exonerate him and preserve

his elibibility for unemployment bene-

fits. His conduct was purely volitional,

and disregardful of his employer's interect.

There is nothing in this case to indicate

that the caimant's belief about his legal

rights were other than self-induced. If

he wisheeé to gamble on the accuracy of

his pursonal jurisprudence, the Unemploy-

ment Compensation Func should not be reo-

uiread to subsidize his misconception.

For the reasons set forth in this

opinion, the order of Board denying

benefits is affirmed.

/S/

Menke t WowWwi ld icamss cde. gbtcicge:

Judge Mencer uid not purticipate in the

decision in this case.

Oo OTe © FT SS

7

“*Act of December 5,1936, Second Ex.Sess.,

P.L.(1937) 2897, as amended,43 P.S.

Sec. 802 {«).

A «3

he observed,the claimant has also re-

ferred to his “right of privacy." The

"Sight of privacy," in its constitution-

al sense, has been declared to a penun-

bral emanation of the Fourth Amendment

and other specific guarantees in the

Bill of Rights of the federal constitu-~

tion. Griswold v. Connecticut, 381 U.S.

479 (1965). However, what we have al-

ready said about the inapplicability of

the Fourth Amendment to the conduct of

private parties must also be said about

the constitutional “right of privacy."

Therefore, the only “right of privacy"

the claimant can attempt to raise is

the one that exists among a person's

common law rights against private

parties.

3. Although the incident here in issue

occurred after the claimant's work

shift was technically over, that fact

goes not prevent his behavior from being

willful misconduct. Nevel v. Unemplov-

ment Compensation Board Of Revicw, 32

Pa. Commonwealth Ct. 6, 377 A.2d 1045

(1977).

CLYDE A. SIMPSON, IN THE COMMONWEALTH

or COURT OF PENNSYL-

VANIA

¥.

COMMONWEALTH Ob

PENNSYLVANIA, UN-

LUMPLOYMLENT COMPEN

SATION BOARD OF

REVIEW,

Respondent

THE BABCOCK &

WILCOX COMPANY,

Intervenor:

No.3000 CD. 1980

ehhh peeels LeeLee Tee

ORDER

AND NOW, the 17th day ot September,

1982, the order of the Unemployment

Compensation Board of Review at Decision

No. E-189375 is affirmed.

fS/

Robert W. Williass, Jr., JUDGE

(certified from the Record

Sept.1/ 1982

/s/ Francis C. Barbush

chief clerk

Commonwealth of Pennsylvania

Department of Labor and Industry

UNEMPLOYMENT COMPENSATION BD.OF REVIEW

Labor & Industry Building

Harrisburc,Pa. 17121

DECISION AND ORDiR

Appeal No. S.S.acct.no. DecisionNo.

B-80-6-B-289 166-26-3253 B-189375

Decision Marling cate November +, 190

concerning Claim ot Lmploye:

CLYDE A.SIIMPSON BABCOCh& WILCOX CO.

2.0.2, Bon 763 Beaver Falls,PA 15010

Fombell, PA 16123

date and nature of referee's decision.

Sept.19,1980

Date of application for bencfits

Junc 1, 1980

A 27

The determination ot the Otfice is

reversed and benefits are granted

for compensable week ending June 7, 1980.

Compensable week ending Date(s)

June 7, 1980

Appeal from Referee's decision filed by:

Claimant XX-Employer Bureau

Findings of Fact:

1. The claimant was last employed by

Babcock & Wilcox Company for 29

years as a machinist at the final

pay of $10.75 per hour. For the

purpose of this appeal, his last

day of work was June2,1980.

2. It has been both vast and present

practice of the employer to conduct

"lunch box searches" of employes on

a periodic and random basis.

c The “lunch box searches" take place

as employes are exiting the plant

at the end of their resvective work

shift and involves both management

and hourly personnel and includes

both male and female emploves.

4. The purpose of the “lunch box

searches" is to prevent and dis-

cover possible theit of Company

property.

‘’, (im May 29,1980, «0 “tunch box aairecl

was Conducted by the cmployor.

6. The claimant refusea to participate

in the “lunch box search” because

of his strong conviction that it

was a violation of his human right

to privacy.

a The Ciaimant was suspended tor onc

targa oh as fF result of his refusal rc,

A 28

participate in the “lunch box search" of

May 29, 1980.

The foregoing Findings ot Fact made by

the Referee are supported by the evidence

and are adopted by the Board of Review.

In addition, the Board finds as follows:

6. The “lunch box search" was a reuson-

able exercise of the employer's

prerogative.

9. The Claimant returned to work on June

10, 1980.

RE: B-80-6-B-289

DISCUSSION: ‘The Office of Employment

Security determined the claimant to be

ineligible for benefits under Section

402(e) of the Law. From this determina-

tion the claimant appealed. ‘The claimant

appeared at a Referee's hearing together

with claimant's counsel, a witness in the

Claimant's behalf, the claimant's union

representative and five witnesses for

the employer. The Referee reversed

the determination of the Office and the

employer appealed.

Section 402(3) of the Law provided that

a claimant shall be ineligible for com-

pensation for any week in which his unem-

ployment is due to his discharge on

temporary suspension from work lor will-

ful misconduct connected with his work.

While the term “willful misconduct”

is not:.defined in the Law, the Board of

Review and the Appellate Courts in

numerous decisions have defined willful

misconduct as an act of wanton or will-

ful disregard of the employer's interests,

a deliberate violation of the employer's

rules, a disregaru or the stanaards of

behavior which the employer has a right

A 29

to expect ol an emnloye, or negligence

indicating an intentional disreaqurd of

the employer's interests or Of che

omploye !s duties and obligations to tae

enployer.

the claimant had a 29-you1r tonure with

thre cmployenr ass a machrmnsd MENGE welts

suspended for one week on dune 2, U780.

Hie returned to work on June ig, i3te.

The employer had a practice of searching

lunch boxes. of both male and femalc

employes which was objyeetional to the

claimant. ‘When the claimant Was asked

to undergo this procedure, he relusea

and was suspended. This case will turn

on whether the rule requiring searches

was reasonable. This inquiry the board

answers in the affirmative. Even if the

requirement 1s reasonable, we must then

evaluate the claimant's refusal under

the doctrine promulgated in Frumento

Unemployment Compensation board of Kevicv,

466 Pa. G1, 35% A-26 631 (1976). We hold

in this case that the claimant's refusal

to abide by the rule was not justified.

further, as pointed out in Hughes V Un-

employment Compensation Board of Review,

40 Pa. Commonwealth Ct. 638. 396 A.2a 236

(1979), the reasonableness of the employ-

request must oe balanced with the

reasomabbenmets Of the crm bovects pebtuscal.

in this regard, we holed that the practice

of the ecuployer outweighed any tb bergerc

violation of the cleimant's right of

privacy. Consequently, benefits must be

denied since the claimant's action 1s

tantamount to willful misconduct.

V.

er's

CONCLUSTON OF LAW: The claimant is in-

eligible tor benefits under Section 402 (e)

of the Pennsylvania Unemployment Compens an

tion iaw.

A 30

ORDER: The decision of the Referee is

reversed and benefits are denied.

UNEMPLOYMENT COMPENSATION

bOARD OF REVIEW

Maurice Abrams, Chairman

Joseph J, McAneny ,Momber

James P. Breslin,Member

PENNSYLVANIA UNEMPLOYMENT COMPENSATION

BOARD OF REVIEW

REFEREE'S DECISION

Decision mailing date - Sept.19,1980

5.S. Acct. No. 166-26-3253

Appeal No. 80-6-B-289 Appeal date -

July 21, 1980

concerning the claim of

Clyde A. Simpson

R.D.2, Box 763

Fombell,PA 16123

Emp loyer-BABCOCK&WILCOX CO.

Beaver Falls,PA 15010

date and nature of Bureaus Decision:

7-16-80 Claimant ineligible-

Separation due to willul misconduct

in conneclion with his work-Section

402(e).

Hearing date and Location

September 11,1980 -Rochester,PA

Date of Application for Benefits

6-1-80

Compensable week ending date

6-7-80.

nm 22

Hearing Appearances

XX Claimant

X Employer

burecdu Representative

% Others (see HD-109)

Date application for benefits 6/1/80

Compensable week ending Gate 6/7/80,

Wuiting week emling date (btank)

Claimant Appeal = XxX

Lmployer apveal (blank)

FINDINGS OF FACT:

1. The claimant was last employed by Bab-

cock & Wilcox Company for 2% years as

a machinist at the final rate of pay

Of $10.73 per nour. For the purpose

of this appeal, his last day or work

was June 2, 1980.

It has been both past and present rac-

} }

ho

7

tice of the employer to conduct “lunct

box seurches" of employees on a per-

iodic and random busis.

3. The “lunch box searches” takes place

as employees are exiting the plant

tt the omd ot Cheir vespect ive: work

shatt gindl pinveodlverss botlhi tiated

and hourly personne! and includes

both male and female employces.

4. The purpose of the "lunch box searches"

is to prevent and discover possible

theft of company vroperty.

5. On May 29, 1980 a "lunch box ;

searcn “ was conductea by the emplover.

A 34

Z£

6. The claimant refused to participate

in the"“lunch box search" because of

his strong conviction that it was

a violation of his human right to

privacy.

7. The claimant was suspended for one

week as a result of his refusal to

participate in the"“lunch box search"

of May 29, 1980.

8. The claimant returned to work on

June 10,1980.

REASONING: Section 402(e) of the Law pro-

vides that a claimant shall be ineligible

for compensation for any week in which his

unemployment is due to his discharge or

temporary suspension from work for wilful

misconduct connected with his work. While

the term “wilful misconduct” is not defined

in the Law, the Board of Review ana the

Appellant Court in numerous decisions

have defined wilful misconduct as an act

of wanton or wilful disregard of the em-

ployer's interests, a deliberate viola-

tion of the employer's rules, a disregard

of the standards of behavior which the

employer has a@ right to expect of an en-

ployee, or negligence indicating an in-

tentional disregard of the employer's

interests or of the employee's duties

and obligations to the employer.

The claimaint was discharged “or his re-

fusal to participate ina "lunch box

search” conducted by the employer on

May 29, 1980.The claimant engaged in such

conduct.

A se

After a careful review of the entire re-

cord, the Reteree believes the employer's

practice of conducting “lunch box searches"

was reasonable in light of nondiscriwina-

tory manner in which such searches are

conducted and the intended purpose of

the search. The Referee also believes the

Claimant's conduct as to his refusal to

participate in the “lunch box search" of

May 29, 1980 was reasonable wna with “good

cause" because of the claimant's strong

conviction that to do so would be a viola-

tion of his human rights to privacy. There-

fore, while the Referee in no -- questions

the employer's right to suspend the claim-

ant, she cannot hold that the suspension

was due to wilful misconduct in connection

with the claimant's work. Consequently,

there can be no Genial of benefits under

the provisions of the above citec Section

of the Law.

ORDER: The determination of the Office

is reversed and benefits are granted for

compensable week ending June 7, 1980.

/S/

Jean M. Warwich, Reteree

rjf

COMMONWEALTH OF PENNSYLVANIA

DEPARTMENT OF LALOR AND INDUb'i'RY

UNEMPLOYMENT COMPENSATION BD.OF REVIEW

IN RE: claim of Appeal No. 80-6-B-289

Clyde A. Simpson _..

R.D.#2, Box 763 &§.S.No.166-26-3253

Fombell, Pa. 16123

CLAIMANT'S BRIEF ADDRUSSED TO REIEREE

WARWICK IN SUPPORT OF UNEMPLOYMENT

COMPRMAAPTOM CHAI™

A 34

It is the Emplover's burden to prove wil-

ful misconduct on the part of his employee,

where alleged; Frick v. Unemployment

Compensation Boarc of Review, —_ Pa.Cmwlth.

_» 375 A.2d 879 (1977); Unemployment

Compensation Board of Review v. Vereen,

__Pa.Cmwlth.__, 370 A.2d 1228(1977); Sorce

v. Unemployment Compensation Board of Re-

view, Pa.Cmwilth. , 370 A.2d 818 (1977).

There is a sharp legal distinction betwecn

wilful misconduct under the statute and

the Employer's policy claimed to be ade-

quate cause for discharge; W.R.Grace v.

Unemployment Compensation board of Review,

__ Pa. Cmwlth. _, 412 A.2e 1128 (1980).

The Employer bears a heavy burden of denr-

onstratinyg deliberate violation by the

employee, of its reasonable rules (where

those rules are published, as here they

were not) or of demonstrating disregard

of standards which the Employer has 6

right to exvect of the [rrlo:ee;

A 35

Unemployment Compensation Board of Review

Vv Grossman, PaCowith. , 349 A.2d 779

(1976). Even a violation of published

rules is not tantamount to willful mise

conduct, but there must be a sepurate

finaing whether there was yood cause for

their violation in the specific instance

complained of: Holomshek v. Unemploynent

Board Of Roview, Pu.Cmwlth. , 395

A.2d 708 (1979). Even where rules have

been promulgated and published, it! theas

enforcement has been lax or spotty in

the past, and there is no more recent

notice by the Employer of his intent to

begin enforcing them specifically, they

will not support a charge of wilful mis-

conduct; Williams v. Unemployment Compen-

sation Board of Review, _Pa.Cmwith. ,

380 A.2d 932 (1977). <A single instance

of violation of rule is ordinarily not

enough to make out a charge of willful

misconuuct; Morgan v. Unemploynent

A 36

Compensation Poard of Review, 176 Pa. Super.

297, 106 A.2d 618 (1954).

The trier of fact must look both to

the reasons for non-compliance, and to

the reasonableness of the employer's re-

quest in light of all the circumstances;

Unemployment Compensation Board of Review

v Jacano, Pa.Cmwlth_, 372 A.2d 1267

(1977). An employer's demand, in order

to create in the employer a right to

expect compliance, must be reasonable.

Again, the employee's refusal to comply

is not willful if the refusal is justifi-

able or reasonable. In either case, a

charge of “willful misconduct" cannot

stand as a bar to the areceipt of un-

employment compensation; McClean v Un-

employment Compensation Board of Review,

476 Pa. 617,383 A.2d 533 (1978). In un-

employment compensation proceedins the

issue is “not whether the Employer had

the richt to discharge for the cuestion-

"A 37

ed conduct of the emvlovee, but rather

whether the state is justificd in rein-

forcing that decision by denying benefits"

for unemployment compensation; Frumento

view, 466 Pa.81, 351 A.2c 631, at 634

(1976), also citing with approval, McClean,

Supra. The reasonability of the employer's

rules is a guestion of fact; Unenmploy-

ment Compensation Board of Review v_

Homsher, Pa.Cmwith, ,347 A.2d 340

(1975). An employee has a right to

question an Employer's position, anc if

this questioning is done in a non-abras-

ive manner (and here all the abuse was

visited upon Claimant) it doe: not, with-

out more, constitute willtul misconduct;

Luketic v. Unemployment Compensation Boaid

of Review , _— Pa.Cmwlth. , 386 A.2d

1045 (1978).

Claimant haa a right both under the

**

Fourth -menlheent to the Unitec craccs

A 38

Constitution, and under Article 1, Sec-

tion 8, of the Pennsylvania Constitution,

to be free from unreasonable search or

seizure. Before unemployment compensa~

tion benefits could be denied a claimant

on ground that he had his employer's prop-

erty in his possession, {and here, there

was no probable cause to suspect Claimant

of having any such property in his po-

session, for he had long and consistently,

before any question arose, given his em-

ployer a notice that he asserted a privacy

right in his lunch bucket and possessions)

it was first necessary to determine that

the dismissal was on the specific ground

of possession of the employer's property,

and not rather on the ground that the

employee had refused to submit to search;

White v. Unemployment Compensation Board

Of Review, 17 Pa.Cmwlth. 110, 330 A.2d

S43 (1975). A fundamental constitution-

al riaht is involved in an illeaal search,

A 2?

and a waiver of rights to be free from

Such searches will not lughtly be found;

Cimwlth. v. Burgos, 223 Pa. Super. 325,

se) A.24 34,37 (1972).

An employee's basic constitutional

rights against illegal searches and

seizures are operative both inside and out

of the plant, and the employee cannot be

disciplined for exercising these rights;

ALEX CORPORATION, STANRAY PRODUCTS PLANT

and UNI'VED S'TTEELWORKERS OF AMNEKICA, LOCAI

UNION NO. 2483, 79-2 ARB para. Wold. So

also an attempt to search an employee's

possessions, combined with an assault

upon that employee (as is amply demon-

Strated against Claimant) for failure to

submit to the search, is groum!l tor re-

instatement with full back pay. NATIONAL

VENDORS and INTERNATIONAL ASSOCIATION OF

MACHINISTS AND AEROSPACE WORKERS, DISTRICT

NO.9, 79-2 ARS para. 38556.

A 40

Even beyond the above-stated constitu-

tional rights, Claimant had a right of

privacy in his belongings, including his

lunch bucket, a conmon-law right recog-

nized both on the federal (Jenkins v

Dell Publishing Co., 251 F.2d 447,449,

Cert. den. 78 &.Ct. 1362, 357 U.S. 1921

2 1.Ed w.d 1365 (1958)) and state (In Re

Mack, 386 Pa. 251, 126 A.2d 679,663 (1956);

Uniform Single Publications Act, 12 P.S.

Sec.2090.1 et seg.) levels. A public

search of one who has done nothing

wrong is a specific violation of this

right; Bennett v. Norban, 396 Pa. 94,

151 A.2d 476,478 (1959). That right is

a fundamental constitutional right; In Re

Br PS-__« 394 A.2a 419 (1978) and

the many cases therein cited, especially

at 394 A.2d pp. 424 and 425.

Respectfully submitted,

/S/

Claude V. Falkennan,

Atty. for Claimant

A 41

COMMONWEAT.TH OF PENNSYLVANTA

DEPARTMENT OF LABOR AND INDUS'TRY

UNEMPLOYMENT COMPENSATION BD. OF REVIEW

TRANSCRIPT OF TESTIMONY

IN RE: Claim of Clyde A. SIMPSON

RO. 2,1T0% fos

Fombell,PA lol23

SS. Ho. 166-26=3253

Appeal No. 80-6-B-289

Date of Hearing - Septembe: 11, 1980

Place of licaring - Rochester Job Sve.Ofec.

Hearing Before R - Jean M. Warwick

APPEARANCLS:

Claimant C - Clyde A. Simpson

Counsel for Claimant CL- ClaudeV.Falkenhéin

Attorney at Law

20] Spruce St.

Zelienople,PA

16003

Claimant's Witness - CW Ronald Border

22 4th fot .

Beaver, VA 15009

Claimant's Union <-CU - Joseph W.Orosz,

Representative Presicent

United Steelwor} -

ers of America,

Local 1082

828 7Jth Avenue

Beaver,VvA 15010

List of APPEAR?NCFS (Cont'd) Clyde A.

Simpson

80-6-B-289

Employer Representa-

tives EWl- William A.Frankland,

Industrial Relations

Manager

EV2- Gene Douglass,Suprvsr.

of Employee Benefits

EW3- Richard Tunno, General

Foreman,Maintenance

EW4- Roy Lutz, Guard

Evi5- Donald Shellenberger,

Chief,Plant Security

Rabcock and Wilcox Cc.

Leaver hau l ] bs PA | 50 ] 0

[What follows are excerpts from a 60 page

transcript .|]

QOCL: Your guards, what's their relation-

ship with the local police? Have

you over called in the pol ‘cons £O

WH VOUT mma

ADWS: AL Limes, VeHR.

OR: All right. Dic vou say anything

to him at that time?

AEW4: Yes. i was trying to talk to him

into lettina me take and see in

his bucket but he was !

’ - i

Tal

OR: And what did you say to hin spveci-

Ficaliv, Mc. Laitz? As far as you

can remember.

AEW4: Well, as far as’I can remember I

S6OiGd him .« wnat I mean ... that he

»ee Why he wouldn't take and do it

and he said it was his constitution-

al rights and he didn't have to let

anyone take it and see it.

OCL: Mr. Falkland, do you know whether

.--well, Mr. Douglass I believe

said there isn't anvthing wore in

the companwv .. that these were...

rules about bucket searches are not

eovered in the contracl. Now, are

you party or signatory to any of

the governing union contracts?

*

ACIWi: Yes, I am.

‘

QCL: You sianed certain passages of it

for the company?

Atwtls Yor! P | bi.aVe

(ude Time 3hhe pot imaterdy t.ometdo.cr watts

ant tin booprere’t ss cel Edea® arapest. F xactt

AcWi: I am tamiliar with most aspects

af tne COntract.

QCL: Well, would you agree with Mr.

Douglass that these rules about

covered

bucket searches are not

QCL:

AEW1:

Not .. no .. I don’t know of any

place in the labor agreement that

covers that specifically.

Are there published rules publishec

to the employees saying that it is

the rule of this company that you

are subject to bucket searches?

No.

Has there ever been?

Not to my knowledge.

Do you plan any announcements or

publications of rules to the em-

ployees relative to bucket search-

es and the company's demand that

they submit to them?

Not at the present. Not without

legal counsel. I don’t really

believe ...personally believe

that there is at this time for

any need for notifying employees

that. As I told you, this ...

these bucket searches have been

going on with frequency over a

long period of time.

All right. You don’t ..

And

I’m sorry.

A 45

AEW1:

AEW1:

QOCL:

AEW1:

QCL:

AEW1:

I believe that all present employ-

ees are aware that the bucket search-

es are made periodically.

Okay.

All new employees, of course, go

through the orientation program.

Okay. So you don't plan to pub-

lish any rules until you check

with counsel?

At this point I don't plan to pub-

lish any rules and I wouldn't do

so without checking with counsel.

So at the point you say that you

would formally announce to the en-

ployees that the company asserts

the right to search buckets and

demands that employees submit,

you would first carefully check

with counsel before you told the

employess in writing that they

were subject to search. Is that

80?

No. ‘That isn't what I said.

Well, why would you check with

counsel before putting in writ-

ing what you are happy to have

as a practice and an oral policy?

I am not sure .. I think that I

A 46

have lost my train of thought. I would

QCL:

AEW]1:

QCL:

AEW1:

like your question. .

Okay. Yes. Of course. Why would

you carefully check with counsel

before putting a rule in writing

anc publishing it to employees,

if the rule related to what you

Say already happens and is al-

ready authorized by practice and

is told orally by management to

employees at least in orientation

sessions. If it is the same rule,

why would you have to check with

counsel before you put it in writ-

ing if you enforce it anyway?

I don't think that we... as a

matter of fact, I think that.you

establish that there is no rule.

There isn't. .

I'm asking you... I asked you

whether you intended to and, you

said, certainly I would check

with counsel before I put that in

writing and published it to the

employees.

I think that I said to you that I

don't believe that there is a need

for uoing it and I would only do

A 47

QR:

it if counsel told me that there was

a need for doing it.

me WOR OP 4 so sk

I don't believe that there is a need

to do it.

Mr. Simpson, can you tell me plese

in your own words why you refused

to open your lunch bucket that Gay?

Because I felt that it was a viola-

tion of my rights. I felt that they

had no right to act like I am some

kind of a criminal, just because I

work for them. And they have all

kinds of rules and regulations a-

bout signing for things and all

kinds of stuff that always tell you,

hey, you're dishonest. You know,

we have got to keep an eye on you.

And .. when it comes to this searcl

I was .. it was right in the Consti-

tution and I knew that they had no

right to act like this and .. and

I felt that I am not going to let

them do it.

All right. Mr. Simpson, do you

feel this right ... that you have

this ,»rivacy and it extends to

A 48

AC;

R:

AC;

people other than just your employer?

Oh, yes. Of course, sure I do.

My question is would vou object to

being searched by anybody, be it

your employer or someone else?

Yes. Policeman or anybody. You know,

if they have got their reason. In

other words if they were to come

out there and say, look, Clyde,

we saw you do this. You know, and

if it was done with any kind of ...

Okay. Continue please.

Okay. If a .. if a policeman there

and he said that we are accusing you

and you have got this in your bucket,

you know. I could understand that.

I mean I wouldn't say, oh, no and

take off and run or something. But

just to grab everybody and say ...

Say .. hey, we think you might

be dishonest today, show us you're

not. In effect that is what you

are saying. You are saying we be-

lieve you to be possibly a crook

today and show us that you're not.

I object to that. I really think

that this is the wrong thing to dc.

[Em excerpts from Transcript]

aA 33