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ROADWAY EXPRESS v. COMMONWEALTH PENNSYLVANIA (03/27/84)

decided: March 27, 1984.

ROADWAY EXPRESS, INC., PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT



Appeal from the Order of the Unemployment Compensation Board of Review in the case of In Re: Claim of Scott B. Miller, No. B-196798-B.

COUNSEL

Richard L. Bush, for petitioner.

Richard F. Faux, Associate Counsel, with him Richard L. Cole, Jr., Chief Counsel, for respondent.

Judges MacPhail, Doyle and Blatt, sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 81 Pa. Commw. Page 183]

Roadway Express, Inc. (employer) appeals here an order of the Unemployment Compensation Board of Review (Board) which reversed a referee's decision and granted benefits to the claimant, Scott B. Miller.

The claimant had been employed as a dock worker for approximately three years and two months, one condition of his employment being that he be on call 24 hours per day, seven days per week. This "on call" requirement, however, was not without parameters, which will be discussed later. During his employment, the claimant accumulated a record of absenteeism for reasons such as failing to be available for work when contacted and refusing work for "invalid" reasons, for which he received verbal and written warnings as well as three disciplinary suspensions, the last suspension coming on November 2, 1980 and continuing for five days. On December 2, 1980, he was again absent from work due to his failure to receive a work call, and he was subsequently discharged.

[ 81 Pa. Commw. Page 184]

The referee denied benefits pursuant to Section 402(e) of the Unemployment Compensation Law (Law), Act of December 5, 1936, Special Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e) (willful misconduct). The Board reversed and granted benefits, reasoning that the "twenty-four (24) [hour] on call rule is per se unreasonable and the claimant's refusal to not be available on the dates in question must be considered justified and his actions do not rise to the level of willful misconduct." (sic) (Emphasis in original.)

The question presented for our review, therefore, is whether or not a work policy requiring an employee to be on call for twenty-four hours per day, seven days a week, subject to certain restrictions is unreasonable and, therefore, a defense to a charge of willful misconduct.

We have previously defined willful misconduct as a wanton and willful disregard of the employer's interest, a deliberate violation of rules, a disregard of standards of behavior which an employer can right-fully expect from his employee, or negligence which manifests culpability, wrongful intent, evil design, or intentional and substantial disregard for the employer's interests or the employee's duties and obligations. Kentucky Fried Chicken of Altoona, Inc. v. Unemployment Compensation Board of Review, 10 Pa. Commonwealth Ct. 90, 309 A.2d 165 (1973). We have also held that unemployment compensation will be refused unless the employee proves that his refusal to adhere to the employer's rules and policies was reasonable under the circumstances. Simpson v. Unemployment Compensation Board of Review, 69 Pa. Commonwealth Ct. 120, 450 A.2d 305 (1982). And, our scope of review, where the party with the burden of proof failed to prevail below, is to determine whether findings of

[ 81 Pa. Commw. Page 185]

    fact are consistent with each other and with the conclusions of law and can be sustained without a capricious disregard of competent evidence. Partsch v. Unemployment Compensation Board of Review, 64 Pa. Commonwealth Ct. 293, 439 A.2d 1331 (1982). The burden of proof, of course, is upon the employer to prove that the discharge of the employee was for willful misconduct. ...


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