decided: February 7, 1986.
KLAPEC TRUCKING CO., PETITIONER
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT
Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Charles T. Brant, No. B-212571-A.
John A. Pillar, with him, Kevin W. Walsh, Pillar and Mulroy, P.C., for petitioner.
Richard F. Faux, Associate Counsel, with him, Charles G. Hasson, Acting Deputy Chief Counsel, for respondent.
President Judge Crumlish, Jr., Judge Colins, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge Blatt.
[ 95 Pa. Commw. Page 88]
Klapec Trucking Company (employer) petitions for review of the decision and order of the Unemployment Compensation Board of Review (Board) granting benefits to Charles T. Brant, citing Section 402(e) of the Unemployment Compensation Law (Act) (willful misconduct in connection with work).*fn1
We consider this case for a second time, having ordered the Board on remand to make necessary findings of fact regarding the good cause argument advanced by Brant. Brant v. Unemployment Compensation Board of Review, 83 Pa. Commonwealth Ct. 373, 477 A.2d 596 (1984).
On remand the Board made the following pertinent findings:
2. Claimant and another employee were employed as a team and traveled throughout the states and on July 16, 1982 had just returned from California and at approximately 4:30 p.m. stopped at Electralloy to unload.
3. Claimant's co-worker was instructed that he and the claimant were to unload the truck, reload it for a Monday morning trip to Dayton, Ohio and then drive the truck from the Electralloy yard to the employer's yard.
4. Claimant and his co-worker each had 1/2 hour driving time left and time left on the 70 hours maximum working time; however, claimant or his co-worker did not mention any shortage of hours to the employer on June 16, 1982.
5. Federal regulations require that no motor carrier shall permit or require a driver used by it to drive for any period after having been
[ 95 Pa. Commw. Page 89]
on duty 15 hours following 8 consecutive hours off duty.*fn2
6. The claimant had been on duty 14 1/2 hours.
7. It would have taken two hours to unload and reload the truck and then 5 minutes to drive to the employer's yard.
8. The claimant and his co-worker drove the truck to the employer's yard without first unloading and reloading.
9. The claimant did not mention any shortage of hours in connection with his refusal when he spoke to the employer. The claimant was, however, aware of the shortage of hours when he refused to unload and reload the truck.
10. The claimant was discharged by the employer for refusing to load the truck for a Monday delivery.
The employer now presents for our consideration several arguments on behalf of its general proposition that the Board erred as a matter of law in granting benefits based on these findings. Of course, whether or not an employee's actions constitute willful misconduct is a question of law subject to review. McLean v. Unemployment Compensation Board of Review, 476 Pa. 617, 383 A.2d 533 (1978). And it is now well settled that an employee's direct refusal to comply with an employer directive can constitute willful misconduct. Simpson v. Unemployment Compensation Board of Review, 69 Pa. Commonwealth Ct. 120, 450 A.2d 305 (1982). The employer bears the burden
[ 95 Pa. Commw. Page 90]
of proving willful misconduct; however, if an employee attempts to establish good cause for not complying with the employer's directive, that burden is on the employee. Westmoreland County Commissioners v. Unemployment Compensation Board of Review, 82 Pa. Commonwealth Ct. 313, 475 A.2d 170 (1984).
The scope of our review is dependent upon whether or not the burdened party prevailed below. Because the employer did not prevail before the Board, our review with regard to the employer's burden to establish the prima facie case of willful misconduct is to determine whether or not the Board's findings of fact are consistent with each other and with its conclusions of law and whether or not the Board's findings of fact were made in capricious disregard of competent evidence. Bishop v. Unemployment Compensation Board of Review, 90 Pa. Commonwealth Ct. 553, 496 A.2d 110 (1985). Conversely, with regard to Brant's burden to establish good cause, we are limited to determining whether or not the findings of fact are supported by substantial evidence and whether or not there has been an error of law. Dulgerian v. Unemployment Compensation Board of Review, 64 Pa. Commonwealth Ct. 342, 439 A.2d 1342 (1982).
In resolving these issues, we must evaluate not only the reasonableness of the employer's directive under the circumstances, but also the employee's reason for noncompliance. If the employee's behavior was justified or reasonable under the circumstances, it cannot be considered to have been willful misconduct. McLean.
Our reading of the above-listed findings reveals that, as the employer contends, at no time during his conversations with the employer regarding the order to unload and reload his truck on July 16, 1982, did Brant advise the employer that he was only one-half hour
[ 95 Pa. Commw. Page 91]
from exceeding the fifteen hour on duty rule. In a prior case we held that an
informative communication with the employer may be a factor in sustaining the employee's burden to establish good cause for a violation, and, in those situations, the employee, where feasible, must notify his employer of the reason for refusing to comply with rules, unless the reason for noncompliance is self-evident, or unless the employer is independently aware of the circumstances warranting noncompliance.
Bortz v. Unemployment Compensation Board of Review, 76 Pa. Commonwealth Ct. 436, 438, 464 A.2d 609, 610-11 (1983).
While the findings in this case do state that Brant had just completed a return trip from California, we also note that he was part of a driving team on that trip. Furthermore, we see nothing in the findings to directly or indirectly indicate that, absent advice from Brant, the employer had any way of knowing that, at the time these events occurred, Brant was nearing the fifteen hour time limit that day.*fn3
[ 95 Pa. Commw. Page 92]
Under such circumstances, we conclude that this case presents a situation where the employee was obliged to inform the employer of his reason for noncompliance and that his failure to do so not only vitiates what would otherwise have been good cause for noncompliance, Bortz, but also operates to remove the stain of unreasonableness from the employer's order. We hold, therefore, that the Board erred in granting benefits.*fn4
[ 95 Pa. Commw. Page 93]
Accordingly, we will reverse the decision and order of the Board.
And Now, this 7th day of February, 1986, the decision and order of the Unemployment Compensation Board of Review, Decision No. B-212571-A, is reversed and benefits are denied to Charles T. Brant.
Reversed. Benefits denied.