Opinion
No. 922 C.D. 2012
01-09-2013
Ronald A. Malatesta, Jr., Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE LEAVITT
Ronald A. Malatesta, Jr. (Claimant) petitions for review of an adjudication of the Unemployment Compensation Board of Review (Board) denying his claim for benefits under the Unemployment Compensation Law (Law). In doing so, the Board affirmed the decision of the Referee that Claimant was ineligible for benefits under Section 402(e) of the Law, 43 P.S. §802(e), by reason of his willful misconduct. Because Claimant failed to establish good cause for disregarding his employer's instructions for two different work assignments, we affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §§751 - 914.
Section 402(e) provides, in relevant part, that "[a]n employe shall be ineligible for compensation for any week ... [i]n which his unemployment is due to his discharge or temporary suspension from work for willful misconduct connected with his work." 43 P.S. §802(e).
Claimant was last employed as a laborer by Mechanicsburg Trucking (Employer). He was discharged on October 19, 2011, for failing to complete two work assignments. Claimant applied for unemployment benefits, which were granted by the UC Service Center. Employer appealed, and the matter was assigned to a Referee. Co-owners Kristine Gentile and Ronald Deitch, Jr., testified for Employer. Claimant testified on his own behalf.
Gentile testified about one of the two incidents for which Claimant was terminated. On October 17, 2011, Claimant was assigned to a work site in Hershey. He was instructed to tow Employer's mini-excavator back to Employer's headquarters in Mechanicsburg upon completing the project. According to Gentile, Claimant informed her he did not tow the excavator back to Mechanicsburg "because the vehicle that was available was not licensed to tow. That it was not of weight to be able to tow [the excavator] properly ...." Notes of Testimony, February 1, 2012, at 6 (N.T. ___). However, Gentile checked the registration of the vehicle and found that it was legally licensed and able to tow the excavator.
Deitch testified about the second incident for which Claimant was discharged, which involved a macadam restoration project in Chambersburg. Claimant was responsible for using a cutter to trim the edge of the macadam along a long trench. On October 17, 2011, Deitch visited the job site and discovered the edge of the macadam was wavy and irregular. He told Claimant that his work was "not acceptable" and instructed him to recut the macadam. N.T. 22. When Employer's customer called the next day complaining that the macadam edge was unacceptable, Deitch called Claimant and asked if he had recut the macadam; Claimant responded that he had not. N.T. 22. Claimant told Deitch that he did not recut the macadam because "he had to clean up." N.T. 10. The following day, October 19, 2011, Claimant was discharged.
Claimant testified that his actions were based on his safety concerns. Regarding the Hershey incident on October 17, 2011, Claimant stated that he did not tow the excavator because the two available vehicles, a van and a stake body truck, could not do so safely. According to Claimant, the front end of the van "wanders around by itself," while the stake body truck "was unreliable as far as starting." N.T. 13. Claimant conceded that he did not notify Employer of his concerns while he was still in Hershey, testifying that "I was terminated on the 19th so I was - I told that I thought I wasn't safe on the 19th." N.T. 12.
Regarding the Chambersburg job, Claimant agreed that the edges of the macadam were crooked and that Deitch twice told him to recut the macadam. Claimant explained that his work was hindered by a mechanical problem with the cutter, which he repaired, and because the edges of the macadam were undermined. Claimant believed the undermining made it unsafe to push the 400-pound cutter along the edge of the macadam adjacent to the trench, which he estimated was three feet deep. Claimant testified that he straightened the edge to his own satisfaction and "tried to repair it the best that [he] could." N.T. 20.
Claimant testified further that he had several discussions with Employer about his performance, attitude and complaints from customers about his work. Claimant recalled that "[a] lot of times I felt that I was doing a good job and so there was a lot of times I would walk out of [those meetings] just confused. Like I just didn't know what they meant." N.T. 19. Claimant stated that "I always thought I gave 110 percent. I tried to do the job the best I could." Id.
The Referee held that Claimant was ineligible under Section 402(e) of the Law, 42 P.S. §802(e), because his actions exhibited a willful disregard of Employer's interests and the standards of behavior Employer has a right to expect of an employee. Crucial to the Referee's decision was the fact that Claimant did not notify Employer of his safety concerns at either job site until after his discharge. On appeal, the Board affirmed. The Board rejected Claimant's testimony as not credible. The Board credited Deitch's testimony that Claimant informed him that he did not recut the macadam because he needed to "clean up." The Board also found that Claimant did not inform Employer of his safety concerns with towing the mini-excavator until he was discharged. Based upon the foregoing findings, the Board held Claimant was ineligible for benefits under Section 402(e). Claimant now petitions for this Court's review.
On appeal, Claimant argues that he had good cause for disobeying Employer's instruction to tow the mini-excavator from Hershey to Mechanicsburg. Claimant also contends that he had good cause for not completing the Chambersburg macadam job or, alternatively, his failure to do so was the result of incompetence.
Our review is limited to determining whether constitutional rights were violated, whether errors of law were committed, and whether findings of fact are supported by substantial evidence. Beddis v. Unemployment Compensation Board of Review, 6 A.3d 1053, 1055 n.2 (Pa. Cmwlth. 2010).
We begin with a review of the law on willful misconduct. Although not defined in the Law, the courts have established that it means the following:
(1) an act of wanton or willful disregard of the employer's interest;Altemus v. Unemployment Compensation Board of Review, 681 A.2d 866, 869 (Pa. Cmwlth. 1996). Whether conduct rises to the level of willful misconduct is a question of law to be determined by this Court. PMA Reinsurance Corp. v. Unemployment Compensation Board of Review, 558 A.2d 623, 625 (Pa. Cmwlth. 1989). It is the employer's burden to establish that a claimant's conduct constituted willful misconduct. Department of Corrections v. Unemployment Compensation Board of Review, 943 A.2d 1011, 1015 (Pa. Cmwlth. 2008). Once employer meets its burden, the burden shifts to the claimant to prove that he had good cause for his actions. Id.
(2) a deliberate violation of the employer's rules;
(3) a disregard of standards of behavior which the employer has a right to expect of an employee; and
(4) negligence indicating an intentional disregard of the employer's interest or of the employee's duties and obligations to the employer.
In his first issue, Claimant acknowledges that he disobeyed Employer's directive to tow the mini-excavator from Hershey to Mechanicsburg but contends that he had good cause for this refusal. He believed the vehicles available at the job site could not safely tow the equipment. He contends that he timely informed Employer of his safety concerns.
Claimant relies on McLean v. Unemployment Compensation Board of Review, 476 Pa. 617, 383 A.2d 533 (1978), a case in which the claimant refused to drive his employer's truck because he believed it had not been repaired properly and was unsafe to drive. Although McLean and the case sub judice both involve employees who cited safety concerns to justify disobeying their employers' directives, the cases are distinguishable. Ultimately, the claimant in McLean prevailed due to "not only [his] belief that the truck was unsafe, but also the employer's knowledge of the defective condition." Id. at 622, 383 A.2d at 536. See also Bortz v. Unemployment Compensation Board of Review, 464 A.2d 609, 610-11 (Pa. Cmwlth. 1983) (noting that "informative communication with the employer may be a factor in sustaining the employee's burden to establish good cause for a violation," and collecting "good cause" cases where the claimant first informed his employer of the reasons for his conduct).
Here, Claimant did not notify Employer of his safety concerns before he unilaterally decided not to tow the excavator as instructed. By his own admission, Claimant waited until he was terminated to express those concerns. Because Claimant should have apprised Employer of his safety concerns before he refused to follow Employer's directive, we agree with the Board that he did not establish good cause for his misconduct.
We consider, next, Claimant's argument that he had good cause for not recutting the edge of the macadam at the Chambersburg job site, after Employer directed him to do so twice. Claimant contends that he believed that it was unsafe to operate the cutting machine along the edge of the macadam, which had been undermined. Again, Claimant did not inform Employer of this concern until after the fact. According to Deitch's credited testimony, when Deitch called Claimant at the job site and asked him whether he had recut the macadam, Claimant responded that he had not because "he had to clean up." N.T. 10. The Board is empowered to determine the credibility of witnesses and its findings are conclusive and binding on appeal if supported by substantial evidence. Kelly v. Unemployment Compensation Board of Review, 776 A.2d 331, 336 (Pa. Cmwlth. 2001). Based upon Deitch's credited testimony, there was substantial evidence to support the Board's conclusion that Claimant lacked good cause to disregard Employer's instructions.
Because we conclude that Claimant committed disqualifying willful misconduct without good cause, we need not consider Claimant's alternative argument that his failure to complete the macadam job was the result of incompetence. Simply, this alternative argument is belied by Claimant's admission to Deitch that he deliberately disobeyed Deitch's instruction to recut the edge of the macadam because he "had to clean up." --------
For all of the foregoing reasons, we affirm the Board's adjudication.
/s/_________
MARY HANNAH LEAVITT, Judge ORDER
AND NOW, this 9th day of January, 2013, the order of the Unemployment Compensation Board of Review in the above-captioned matter, dated April 24, 2012, is AFFIRMED.
/s/_________
MARY HANNAH LEAVITT, Judge