McLean v. Unemployment Compensation Board of Review

*273Dissenting Opinion by

Judge Blatt:

I must respectfully dissent. I do not believe that the claimant’s behavior in this case amounted to willful misconduct.

In the first place, it must be kept in mind that the employer has the burden of proving that the claimant’s conduct has arisen to the level where Section 402(e) of the Unemployment Compensation Law1 (Act), 43 P.S. §802(e), requires that he must be disqualified from receiving benefits because of willful misconduct. In addition, a finding of willful misconduct must be supported by substantial evidence. The employer, in this case, the Perlite Manufacturing Company, did not even appear at either of the two hearings held at the direction of the Unemployment Compensation Board of Review (Board), and it was upon the claimant’s own testimony that the Board concluded that the claimant was disqualified for willful misconduct.

The claimant’s own testimony, moreover, which we will quote below, is well worth reviewing. It shows some justification for his alleged willful misconduct, and it was not rebutted. And, while he admits refusing to obey a directive of his employer, which in normal circumstances would amount to willful misconduct, our Supreme Court has admonished us that “where the action of the employee is justifiable or reasonable under the circumstances it cannot be considered wilful misconduct. ...” Frumento v. Unemployment Compensation Board of Review, Pa. , , 351 A.2d 631, 634 (1976). The claimant related the entire incident at the second hearing2 substantially as follows:

*274Referee to Claimant :

“Q. Well, why don’t yon, Mr. McLean, just act as though I know nothing about this case, take it from the beginning, and we’ll give you every chance to testify at this hearing. Won’t you tell us what happened, if you can, please? You may refer to notes, or whatever you wish.

“A. ... I was called by Perlite Manufacturing Co. on a Sunday afternoon. They were in dire need of a truck and a driver and at the present time I’m a truck driver and I drive a owner-operator truck for Larry E. Young. . . . They called and asked me if I would come in and go to work for them and bring my truck in to drive it for them — that they needed help____ At this time Mr. Bosley [of Perlite] also stated that he had an old truck there, but they seem to have trouble with the truck and they could not keep a driver on it. And he gave me the reasons: the truck was unsafe and every driver had refused to drive the truck. He asked me if I would go over the truck and make a list of faults on the truck and submit them to him, because it was possible they were going to try to have the truck repaired and use their own truck in the future — and just use the truck which I leased them through Mr. Young temporarily.

“Q. All right. Continue, please.

“A. ... So I made up a complete list of what was wrong with the truck. Mr. Bosley stated to me then that the truck had been in the garage just prior to my coming down there and he felt that the garage had done a lot of work on it but it appeared that they did not bring the truck up to a truck-driver’s standards, which of course is a federal law for me. ... So he said that he would take it back to this garage and have *275more work done on it. I said to him, ‘At this time, Mr. Bosley, I feel that that is a waste of time, because of the fact that you’ve already been charged for this work bn this truck and it hasn’t been done.’ And I showed him right on the vehicle where it had not been done. He said that well, he was going to take it back up to them anyway and have them go over everything that I put on the list. ... So Mr. Bosley three days later said to me, ‘Well, would you go up and pick up the truck and drive it back down here and we’ll see how it is.’ So I went up to the — I forget the name of the garage, it’s in Bethel, Pa. — I picked up the tractor to bob-tail [drive without a trailer] it back to Perlite Mfg. Co.—

‘ ‘ Q. Okay.

“A. And before pulling out of the garage up there, I went over a few items which was on the list which was to be cheeked and repaired. They had not been done. The brake-plates had not been pulled off to give me a reading on the brakes. I asked for a reading — what percentage of brakes. ‘Don’t worry about it... they’re good for 3 months . . . they’re good for 6 months.’ I said, ‘I did not ask you that.’

“Q. It’s your testimony that the truck had not been greased?

“A. Yes, sir. It had not been greased, the backing plates for the brakes had not been pulled off to give me a percentage reading on the brakes. The windshield wipers still did not work. The windshield washer still did not work.

“Q. Continue, please. And while you’re talking, I’m going to look to see if Perlite’s here, but continue with your testimony. Keep talking.

*276“A. Well, this vehicle was not brought up to standards. I immediately went to Mr. Bosley’s office. He was gone for the day. The following morning, I came in early to catch Mr. Bosley. I got with Mr. Bosley the following morning.

“Q. Well, just a moment. Let the record show that we’ve called Perlite Mfg. Co. and they’re still not present. Continue, Mr. McLean. You called him the following day, and what?

“A. I came in the following day because when I had returned from the garage with the truck, Mr. Bosley had left the office for the day. Immediately the following morning I came in and got Mr. Bosley. I took him down to the vehicle and I showed him what had not been done on this vehicle. He said to me, ‘Take Mr. Young’s truck again today.’ Well, he said to me, ‘Drive it for one day and see what you say.’ I said, ‘I can’t drive it today, Mr. Bosley.’ It was raining out and there’s no windshield wipers. So they again used Mr. Young’s truck for one day. The following day he said, ‘Please drive the truck for one day.’ It was nice weather, there was no rain. I said ‘I’ll take it out.’ I said, ‘It’s against the law for me to take this vehicle on the road — there’s no fire extinguisher, there’s no flags and flares, there’s no wipers, there’s no windshield washers, I still didn’t get a percentage reading on the brakes, the truck hasn’t been serviced as it was supposed to be.’ He said, ‘Will you please take it out for one day.’ I said, ‘It’s against the law for me to take it out.’ He said, ‘Just take it for one trip and come back and maybe you’ll have another report as to what you feel . . . else should be done to it.’ Okay, I said ‘All right.’ I took the vehicle out on the road, but before I took the vehicle out on the road, I wrote out my road report of my I. C. C. regulations that specified right on there — that I was taking this truck out with all the *277faults that was on the vehicle and I filed my report and I told Mr. Bosley I was doing it against my will but I needed a job. Let’s face it — I have 5 children. So, I took it out. I took it up to Johnstown and Somerset and lost the brakes on it coming down the mountain.

“Q. And these brakes failed?

“A. Yes, sir. They overheated on me and I was lucky at the bottom. I stayed off of them long enough that when I got to the bottom I got it geared down far enough and I got enough brakes out of them to get me stopped. I was very, very fortunate. I really was. Not only that, the vehicle had a very made [sic] carbon monoxide problem — it poured into the cab. I had no idea how it was getting into the cab — it’s just that it was coming in. I had to ride with all my windows down and I was still becoming — ah—ill from the carbon monoxide fumes. So I got the truck back to Perlite and I parked it and I told Mr. Bosley right there that I would not drive this vehicle again.

“Q. Continue, please. Continue, Mr. McLean.

“A. ... So he said, ‘Well, what if I take it back up to the garage and get this work done on it?’ I said, ‘Mr. Bosley, you’ve already paid for half of that work and it wasn’t done.’ I said, ‘That garage is not competent and if you think I’m going to let you take the truck back to the same garage and expect me to drive it again,’ I said, ‘no, sir, no way am I driving that vehicle.’ ”

It seems to me that the claimant’s testimony clearly demonstrates ample justification for his conduct. And, while it was within the Board’s province to judge the claimant’s credibility, I do not believe that his unrebutted testimony, even if not believed, provides substantial evidence to support a finding of willful mis*278conduct, especially when no evidence whatever has been offered at the hearing by the employer and the employer had the burden of proof. . I would reverse the order of the Board and grant benefits.

Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §751 et seq.

This bearing was ordered by tbe Board specifically to provide tbe employer, Perlite Manufacturing Co., an opportunity to appear *274and present evidence. No representatives of the employer, however, appeared at the hearing.