Opinion
No. 1047 C.D. 2012
04-18-2013
Steven L. Dorman, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE FRIEDMAN
Steven L. Dorman (Claimant) petitions for review, pro se, of the April 2, 2012, order of the Unemployment Compensation Board of Review (UCBR) affirming the decision of a referee denying Claimant unemployment compensation benefits. The UCBR concluded that Claimant was ineligible for benefits under section 402(e) of the Unemployment Compensation Law (Law) due to Claimant's discharge from work for willful misconduct. We affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(e). Section 402(e) of the Law provides that an employee shall be ineligible for compensation for any week "[i]n which his unemployment is due to his discharge . . . from work for willful misconduct connected with his work." 43 P.S. §802(e).
Claimant worked for Paul Miller Trucking (Employer) as a truck driver from November 22, 2010, until July 25, 2011, earning a percentage of the load. The Federal Department of Transportation (DOT), Federal Motor Carrier Safety Administration requires that employers and drivers adhere to rules governing driver fitness, hours of operation, and maintenance requirements. Employers who violate the federal rules are subject to fines and/or the revocation of authority to operate. (UCBR's Findings of Fact, Nos. 1-3.)
DOT regulates the number of hours of service for truck drivers. The regulations require drivers to take breaks after driving a certain number of hours. Employer tracks hours of service through a daily driver log that is prepared by the driver. Employer's trucks are installed with a global positioning system (GPS), that records a truck's location every fifteen minutes and also determines whether it is moving. (UCBR's Findings of Fact, Nos. 4-8.)
As a commercial driver's license holder, Claimant was required to follow DOT's regulations regarding hours of service and driver fitness. Claimant was required to notify Employer's dispatcher when he reached the legal number of driving hours. Employer does not penalize drivers for taking breaks required by DOT's regulations. (UCBR's Findings of Fact, Nos. 9-11.)
On March 4, 2011, Claimant received a citation for violating the DOT hours of service regulation while he was driving in Montana. On April 20, 2011, Employer gave Claimant a verbal warning for not doing his driver log correctly. At that time, Employer gave Claimant additional training in how to properly record his status. Employer informed Claimant that he would be held accountable for his recordings. (UCBR's Findings of Fact, Nos. 14-15.)
On July 15, 2011, Employer placed Claimant on a three-day suspension for exceeding the allowable driving hours and for showing his driving status as sleeping in the berth when he was actually driving. Claimant's suspension ended at 2:00 p.m. on July 18, 2011. After Claimant's suspension ended, the dispatcher sent Claimant to deliver a load. On July 19, 2011, Claimant falsified his driver log by listing his driver status as sleeping in the berth when he was actually driving. (UCBR's Findings of Fact, Nos. 16-19.)
The dispatcher did not direct Claimant to pick up or deliver loads when he was out of hours. If Claimant was out of legal driving hours, he could refuse loads. The dispatcher decides who receives assignments. Claimant was not working under a forced dispatch. (UCBR's Findings of Fact, Nos. 20-23.)
Claimant violated DOT's hours of service regulations and deliberately falsified his driver log. On July 26, 2011, Employer discharged Claimant for these infractions. (UCBR's Findings of Fact, Nos. 24-25.)
Claimant filed a claim for unemployment benefits, which the local service center denied. Claimant appealed to the referee, who conducted a hearing and concluded that Claimant engaged in willful misconduct, thereby disqualifying him from receiving benefits. On appeal, the UCBR made its own findings of fact and affirmed the referee. Claimant petitions for review of that decision.
Whether Claimant was not disqualified from receiving benefits under Section 4(l)(2)(B), 43 P.S. §753(l)(2)(B), was separately addressed in Paul Miller Trucking v. Unemployment Compensation Board of Review, (Pa. Cmwlth., No. 1532 C.D. 2012, filed April 18, 2013).
Our scope of review is limited to determining whether constitutional rights were violated, whether the adjudication is in accordance with the law, and whether the necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704.
Initially, Claimant maintains that contrary to the UCBR's finding, Employer did not previously warn him on April 20, 2011, about maintaining his log incorrectly. We disagree.
Employer's exhibit 6b is a memorandum to Claimant's file that Employer's Director of Safety, Duane Weaver, prepared following a conversation he had with Claimant. (N.T., 1/11/12, at 33.) The memorandum, dated April 20, 2011, addresses safety. Therein, Weaver states that he had a conversation with Claimant informing him that his "logs were not done correctly." (Ex. E-6b.) The memorandum discussed how Claimant believed he completed the logs correctly and Weaver advising him to further verify the log. Claimant's admission that he had a conversation with Weaver (N.T., 1/11/12, at 61), Weaver's testimony, and the memorandum memorializing the conversation between Claimant and Weaver, support the UCBR's finding that Employer previously warned Claimant about properly maintaining his logs.
The memorandum stated: "[n]ow that the issue has been addressed with Steve and he has been told how to verify his duty status changes and has been told that he will be accountable for doing so, I would assume the problem will disappear." (Ex. E-6b.)
Next, we address Claimant's argument that Employer did not prove that he engaged in willful misconduct.
Although not defined in the Law, this court has defined "willful misconduct" as: (1) a wanton and willful disregard of an employer's interests; (2) a deliberate violation of an employer's rules; (3) a disregard of the standards of behavior that an employer rightfully expects of its employees; or (4) negligence that manifests culpability, wrongful intent, evil design or an intentional and substantial disregard of an employer's interests or the employee's duties and obligations. Oliver v. Unemployment Compensation Board of Review, 5 A.3d 432, 438 (Pa. Cmwlth. 2010) (en banc). The employer bears the burden of proving that the employee committed willful misconduct. Id. Because this case involves violation of a work rule, the employer has the burden of proving the existence of the work rule and its violation. Chapman v. Unemployment Compensation Board of Review, 20 A.3d 603, 607 (Pa. Cmwlth. 2011).
Here, the UCBR determined that Claimant violated the DOT hours of service regulation applicable to Employer and its drivers. The UCBR's determination is supported by Claimant's admission that he drove despite exhausting the number of hours he could legally work. (N.T., 1/11/12, at 65-66.)
Once the employer proves a violation of a work rule, the burden then shifts to the employee to prove that he had good cause for violating the rule. Chapman, 20 A.3d at 607. Claimant maintains that he had good cause for violating DOT's driving rules because Employer sent him on a forced dispatch. Although Claimant testified that he had no choice but to falsify his driver log and drive more hours than legally permitted because Employer sent him on a forced dispatch, the UCBR did not credit Claimant's testimony. (UCBR Op. at 4.) In an unemployment case, the UCBR is the ultimate finder of fact and is empowered to make credibility determinations. Walsh v. Unemployment Compensation Board of Review, 943 A.2d 363, 368 (Pa. Cmwlth. 2008). Moreover, the testimony of Employer's and Claimant's witnesses supports the UCBR's determination that Claimant could refuse loads if he had exceeded his hours. (N.T., 1/11/12, at 54, 91.)
Claimant testified that a forced dispatch occurs when Employer assigns you a load and forces you to take it. (N.T., 1/11/12, at 59.) --------
The UCBR did not err in determining that Claimant committed willful misconduct. Accordingly, we affirm.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge
ORDER
AND NOW, this 18th day of April, 2013, we affirm the April 2, 2012, order of the Unemployment Compensation Board of Review.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge