# Petition — Simpson v. Pennsylvania

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1983
- **Citation:** 464 U.S. 822

## Text

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«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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_1073%3A1. Public record. Not legal advice.