2009-705, Appeal of Roy W. Brooks

Wiggin & Nourie, P.A.

(New Hampshire Department of Employment Security)

No. 2009-705

Department of Employment Security

with his work. See unemployment benefits because he was discharged for misconduct connected Hampshire Department of Employment Security (DES) finding him ineligible for appeal tribunal (tribunal), as affirmed by the appellate board, of the New DUGGAN, J. The petitioner, Roy W. Brooks, appeals a decision of the

Michael A. Delaney project at Townhomes of Beverly in Beverly, Massachusetts. Dooley called ___________________________ disciplinary issues. On Friday, January 2, 2009, Brooks was working on a full-time plumber in early 2008. Brooks was a good employee with no prior James B. Dooley, who operated a small plumbing and heating business, as a The record supports the following facts. Brooks began working for

Department of Employment Security. THE SUPREME COURT OF NEW HAMPSHIRE assistant attorney general, on the brief and orally), for the New Hampshire

orally), for the petitioner.

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 to press. Errors may be reported by E-mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as meant being “ready to report for work in a condition to work.” p. 2 influence of alcohol, and that Brooks should have realized that being “on-call” legitimate expectation that Brooks would not report to work under the Dooley did not have a written manual or employee handbook, he had a in the patio of one of the units. Finally, the tribunal concluded that although indicated that Brooks was staggering, slurring his words, and that he urinated Brooks’s objection, a memorandum from Townhomes’ property manager, which relied upon in the tribunal’s decision, the tribunal accepted into evidence, over worker that Brooks’s breath smelled of alcohol. While it was not explicitly upon the sworn testimony of Dooley’s wife and a report of a maintenance of alcohol. The tribunal found that Brooks had “a couple of drinks” based benefits because it concluded that Brooks reported to work under the influence Brooks, Dooley and Dooley’s wife testified. The tribunal affirmed the denial of employment. Brooks appealed and the tribunal held a hearing at which only application because he was discharged for misconduct connected with his Brooks applied for unemployment benefits, but DES denied his

terminated Brooks solely because of the Townhomes customer complaint. policy was for employees to use “common sense.” Dooley subsequently “on-call” status or reporting to work under the influence of alcohol because his any further confrontation. Dooley did not have a written policy regarding either to prove he was not drunk, but Dooley told Brooks to leave the job site to avoid drinking, but was not drunk. Brooks told Dooley he would take a breathalyzer Dooley also spoke with Sties, who told Dooley that Brooks had been

one drink at home. he had gone home.” However, Brooks testified that he told Dooley that he had speakerphone, and testified that Brooks said that he “had had a couple when but was not drunk. Dooley’s wife also heard the conversation over a Dooley called Brooks, and Brooks told him that he had had “a couple drinks,” around 7:30, informing him that Brooks was under the influence of alcohol. alcohol on Brooks’s breath. Dooley then received a call from Townhomes 6:15. After they arrived, a Townhomes maintenance worker reported smelling Sties, to drive him to Beverly. Brooks and Sties arrived at Townhomes around could not drive because of a suspended license and asked a co-worker, Phil management company, asking him to return to deal with frozen pipes. Brooks Brooks then received a call around 5:00 p.m. from Townhomes’

at 3:30 p.m. and arrived at home in Manchester at approximately 4:45. be called during the weekend, but not again that day. Brooks left the worksite Brooks to handle these calls. Brooks testified that he was confident he would because of predicted cold weather throughout the weekend and expected weekend. Dooley anticipated a large number of service calls for frozen pipes

weekend to cover any emergencies because Dooley was in Maine for the Brooks at the end of his workday and asked Brooks to be “on-call” for the contends that his actions did not constitute a deliberate violation of company p. 3 which he knew to be contrary to established company rules.” Accordingly, he pursuant to RSA 282-A:32 requires evidence that he “acted in a manner . . . for misconduct under the second prong. He asserts that a denial of benefits Brooks argues that the tribunal erred in finding that he was discharged proof of willful and wanton disregard of an employer’s interests. Appeal of We have previously rejected a definition of misconduct that requires evidence on questions of fact. RSA 282-A:67, IV, V (2010); Appeal of Riendeau 3 and will not substitute our judgment for its judgment as to the weight of the In reviewing the decision of the tribunal, we are confined to the record their own. Appeal of Riendeau upon benefits being paid to those who become unemployed through no fault of

legitimate business interests of the employer. Id. deliberate violation of a company rule that is reasonably designed to protect the single act may be sufficient to support a finding of misconduct if it is a intentional and substantial disregard. Id. However, under the second prong, a degree or recurrence as to manifest wrongful intent or evil design or to show job site. acts do constitute misconduct. Id. The negligence need not be of such a New Hampshire’s unemployment compensation system is predicated of proof that Brooks was under the influence of alcohol when he arrived at the not sufficient for a finding of misconduct, but recurring careless or negligent alcohol consumption. He also asserts that Dooley did not sustain his burden the first prong, isolated or inadvertent instances of unsatisfactory conduct are company policies outlining the duties of an “on-call” employee regarding pronged definition of misconduct applicable to RSA 282-A:32, I(b). Id. Under his employer’s rules because his employer did not have written or oral Riendeau, 152 N.H. at 398. Instead, we have adopted a less stringent two- On appeal, Brooks first argues he could not have “deliberately” violated

connected with his work.” RSA 282-A:32, I(b). however, to an employee who is terminated as a result of “misconduct

Appeal of Riendeau, 152 N.H. at 398. clearly erroneous in view of all the evidence presented. RSA 282-A:67, V; its findings or conclusions are unauthorized, affected by an error of law or 152 N.H. 396, 398 (2005). We will uphold the decision of the tribunal unless

for reconsideration was also denied. This appeal followed. to the appellate board, which sustained the tribunal’s ruling. Brooks’s motion newly discovered evidence, which was denied. Brooks subsequently appealed Brooks then filed a motion to re-open the tribunal decision based upon individuals who have become unemployed through no fault of their own p. 4 is contrary to the purpose of the statute, which is to provide benefits to termination and subsequent denial of benefits. Additionally, Brooks’s reading with notice of every potential form of “misconduct” that could result in their requirement into the statute would force employers to provide their employees of an employer’s written or specifically disclosed rules. Reading such a inconsistent with the statute, which does not limit “misconduct” to a violation such a policy is previously disclosed to the employee. Such a narrow view is requirement that an employee can deliberately violate a company policy only if Moreover, as a matter of law, we decline to read into RSA 282-A:32 a

legitimate expectation that he would be prepared to work if called upon. plumber, Brooks knew or should have known that his employer had a the tribunal’s conclusion that as a mature individual and an experienced to be “self serving.” As a factual matter, the record provides ample support for designed to protect the legitimate business interests of the employer.” Id and that Dooley never provided him with a written “on-call” policy, and found it sufficient to support a finding of misconduct if the company rule is “reasonably argument that he was unaware of the expectations of an “on-call” employee second prong of our test for finding “misconduct.” A single act may be applied the definition of “misconduct.” The tribunal took into account Brooks’s We also emphasize that Brooks’s argument ignores a key phrase of the Based upon these findings, we cannot say that the tribunal incorrectly

under the influence of alcohol protected Dooley’s legitimate business interests. there is ample support in the record that a prohibition on reporting to work Here, while the tribunal did not make any specific findings regarding this issue,

to specifically disclosed rules and policies. employer. second prong of our definition of “misconduct,” company rules are not limited actions constituted a deliberate violation of the conduct required by his Appeal of Riendeau, 152 N.H. at 398. Accordingly, we hold that under the acceptable condition. Accordingly, the tribunal concluded that Brooks’s. realized that being on call meant” being prepared to report to work in an that he had never been “on-call” before because he “knew or should have “never was an alcohol problem.” The tribunal also discounted Brooks’s excuse he had never had a discussion regarding alcohol with Brooks because there regarding reporting to work under the influence was “common sense,” and that [Brooks] be in a condition to be able to work.” Dooley testified that his policy policy or an employee handbook, he still had a “legitimate expectation that The tribunal specifically found that while Dooley did not have a written

consumption for on-call employees. policy because Dooley did not have a written or oral policy regarding alcohol having “a couple of drinks” and that a property manager reported the smell of p. 5 alcohol. The finding is supported by sworn testimony that Brooks admitted to of fact, the tribunal found that Brooks reported to work under the influence of in adjudicative proceedings. RSA 541-A:33, II (2007). Additionally, as a matter discretion to admit hearsay evidence because the rules of evidence do not apply unsworn, hearsay evidence. We disagree. The tribunal was within its of alcohol. Brooks asserts that the tribunal erred in basing its decision upon Brooks also relies upon our decision in Appeal of Lakeview Dooley had sustained his burden of proof that Brooks was under the influence Finally, Brooks argues that the tribunal erred when it concluded that 5

policy. See tribunal’s finding of “misconduct,” the claimant failed to comply with a written A:32. He contends that in all of the cases in which we have affirmed the Nonetheless, Brooks points to our prior case law interpreting RSA 282- because of a medical condition. Id. at 210. claimant “could not be faulted for his inability to perform his job functions” in any misconduct at all. Id. at 209-10. Instead, the tribunal found that the decision because its factual findings indicated that the claimant did not engage written policy. Contrary to Brooks’s argument, we affirmed the tribunal’s the tribunal’s grant of benefits because the claimant had not violated any NeuroRehabilitation Ctr., 150 N.H. 205 (2003), and contends that we affirmed

the employee prior to the infraction. upon the fact that the policies were in writing or expressly communicated to Appeal of Riendeau, 152 N.H. at 399. Our decisions in these cases did not rest of misconduct. Appeal of N.H. Sweepstakes Commission, 130 N.H. at 665; decisions because the records in both cases supported the tribunals’ findings the claimants in these cases violated written policies, we affirmed the tribunals’ for violating written company policy regarding sale of tobacco to minors). While supervisory approval); Appeal of Riendeau, 152 N.H. 396 (employee terminated employee could not take company records from work premises without (employee terminated for violating newly-enacted written policy that an

, e.g., Appeal of N.H. Sweepstakes Commission, 130 N.H. 659 (1988)

and the risk of losing its cigarette sales license). minor, the employer was harmed by a monetary fine, damage to its reputation at 399 (explaining that when a convenience store employee sold cigarettes to a his relationship with a customer and harm to his reputation in general. See id. competitor being called to take over the job, but also by the risk of damaging tribunal could have concluded that Dooley was harmed not only by a potential plumbing company to rectify the frozen pipes. Based upon this testimony, the future. As a result of Brooks’s misconduct, the customer had to call another testified that the customer did not want Brooks on the property again in the influence of alcohol and wanted Brooks removed from the property. He also Dooley testified that a customer complained that Brooks was under the p. 6 6

DALIANIS, C.J.