Dearolf v. Commonwealth, Unemployment Compensation Board of Review

429 A.2d 1284, 59 Pa. Commw. 493, 1981 Pa. Commw. LEXIS 1520

Opinion

Opinion by

Judge Mencer,

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,¹ 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.

Tbe petitioner does not dispute bis refusal to follow tbe order to pick up tbe three metal plates. As a result, we must sustain tbe conclusion that tbe petitioner was discharged for willful misconduct, unless tbe order was unreasonable or tbe petitioner bad good cause for refusing to follow it. Tisak v. Unemployment Compensation Board of Review, 56 Pa. Commonwealth Ct. 399, 424 A.2d 635 (1981).

Tbe petitioner testified that be refused to pick up tbe three metal plates because it would have kept him too long from bis normal duties and because tbe aisle was so narrow that be could not get off tbe forklift safely. He bad testified at an earlier bearing, however, that be could have moved tbe forklift forward a few feet and then safely dismounted to pick up tbe three plates. His testimony also indicated that tbe person who ultimately picked up tbe plates spent only a few minutes doing so. Finally, a supervisory employee testified that tbe petitioner bad flatly acknowledged bis refusal to pick up tbe metal plates but bad not offered bis time and safety explanations at tbe time of bis discharge.²

In Taylor v. Unemployment Compensation Board of Review, 40 Pa. Commonwealth Ct. 303, 397 A.2d 451 (1979), we held that, where a claimant offers inconsistent testimony at two different bearings, tbe Board is not bound to accept tbe testimony at tbe later bearing as true. In tbe present case, tbe 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. Commonwealth Ct. 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.

1

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 at the two hearings.

2

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. Commonwealth Ct. 426, 426 A.2d 245 (1981).