Summary
In Dearolf v. Unemployment Compensation Board of Review, 59 Pa. Commw. 493, 496, 429 A.2d 1284, 1286 (1981), where we found a claimant's refusal to follow his employer's order unreasonable, we noted that the employee had not offered his explanation for noncompliance at the time of his discharge.
Summary of this case from Bortz v. CommonwealthOpinion
Argued April 6, 1981
June 5, 1981.
Unemployment compensation — Wilful misconduct — Unemployment Compensation Law, Act of December 5, 1936, P.L. (1937) 2897 — Insubordination — Reasonableness of request — Good cause for refusal.
1. An employe discharged for insubordination is properly found to be guilty of wilful misconduct precluding his receipt of benefits under the Unemployment Compensation Law, Act of December 5, 1936, P.L. (1937) 2897, when evidence establishes his failure to perform a reasonable request of his employer and when the employe did not establish the existence of a good cause for his refusal. [496]
Argued April 6, 1981, before Judges MENCER, BLATT and MacPHAIL, sitting as a panel of three.
Appeal, No. 2 C.D. 1980, from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Harry A. Dearolf, No. B-176137-B.
Application with the Office of Employment Security for unemployment compensation benefits. Application denied. Applicant appealed to the Unemployment Compensation Board of Review. Denial Affirmed. Applicant appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
Lorraine M. Bittner, for petitioner.
Francine Ostrovsky, Assistant Attorney General, with her Richard Wagner, Chief Counsel, and Harvey Bartle, III, Acting Attorney General, for respondent.
Harry A. Dearolf (petitioner) has appealed from an order of the Unemployment Compensation Board of Review (Board) which denied benefits under Section 402(e) of the Unemployment Compensation Law (Act), Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P. S. § 802(e). We affirm.
The petitioner was employed as a warehouseman by the Haskell Manufacturing Company (employer). On June 22, 1979, he was driving a forklift through an aisle in the employer's factory when he bumped into a storage bin, knocking three metal plates to the floor. The petitioner was directed by a supervisory employee to pick up the three metal plates, but the petitioner failed to do so. According to the petitioner's original testimony before the referee, he then drove the forklift past the storage bin again, was again directed to pick up the three plates, and again refused. His employment was immediately terminated because of insuborination, i.e., refusing to follow a direct order from a supervisory employee.
Testimony was initially taken on August 28, 1979. The referee and Board denied benefits. On application of the petitioner, the claim was reconsidered and additional testimony was taken on October 23, 1979. The Board reinstated its denial of benefits on November 29, 1979. There are certain inconsistencies in the petitioner's testimony the two hearings.
The petitioner does not dispute his refusal to follow the order to pick up the three metal plates. As a result, we must sustain the conclusion that the petitioner was discharged for willful misconduct, unless the order was unreasonable or the petitioner had good cause for refusing to follow it. Tisak v. Unemployment Compensation Board of Review, 56 Pa. Commw. 399, 424 A.2d 635 (1981).
The petitioner testified that he refused to pick up the three metal plates because it would have kept him too long from his normal duties and because the aisle was so narrow that he could not get off the forklift safely. He had testified at an earlier hearing, however, that he could have moved the forklift forward a few feet and then safely dismounted to pick up the three plates. His testimony also indicated that the person who ultimately picked up the plates spent only a few minutes doing so. Finally, a supervisory employee testified that the petitioner had flatly acknowledged his refusal to pick up the metal plates but had not offered his time and safety explanations at the time of his discharge.
At oral argument, the petitioner raised an objection to the fact that the referee had elicited parts of the petitioner's testimony by asking questions based upon written statements by the employer which may have been improperly admitted because they were hearsay. Judge BLATT rejected an identical contention in Perminter v. Unemployment Compensation Board of Review, 57 Pa. Commw. 426, 426 A.2d 245 (1981).
In Taylor v. Unemployment Compensation Board of Review, 40 Pa. Commw. 303, 397 A.2d 451 (1979), we held that, where a claimant offers inconsistent testimony at two different hearings, the Board is not bound to accept the testimony at the later hearing as true. In the present case, the petitioner's testimony at the second hearing painted a more justifiable picture of his refusal to follow orders than his testimony at the first hearing. Nevertheless, the Board chose to disregard this more favorable testimony. It did not err in doing so.
We are satisfied that the order to pick up the steel plates was not unreasonable, given the surrounding circumstances. We are also satisfied that the petitioner's explanation for his refusal to follow that order was not sufficient to establish good cause. Kresge v. Unemployment Compensation Board of Review, 46 Pa. Commw. 78, 405 A.2d 1123 (1979) (claimant must establish good cause for refusal to comply with a reasonable request of his employer). Therefore, the Board's denial of benefits under Section 402(e) of the Act must be affirmed.
ORDER
AND NOW, this 5th day of June, 1981, the order of the Unemployment Compensation Board of Review, dated November 29, 1979, which reaffirmed the denial of benefits to Harry A. Dearolf, is hereby affirmed.