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BRUCE L. HEINS v. COMMONWEALTH PENNSYLVANIA (12/11/87)

decided: December 11, 1987.

BRUCE L. HEINS, 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 Bruce L. Heins, No. B-253154.

COUNSEL

Barry W. Sawtelle, Lieberman & Rothstein, P.C., for petitioner.

James K. Bradley, Assistant Counsel, with him, Clifford F. Blaze, Deputy Chief Counsel, for respondent.

Judges MacPhail and Barry, and Senior Judge Narick, sitting as a panel of three. Opinion by Senior Judge Narick.

Author: Narick

[ 111 Pa. Commw. Page 606]

Bruce L. Heins (Claimant) appeals from an order of the Unemployment Compensation Board of Review (Board) which affirmed a referee's determination and denied benefits to Claimant pursuant to Section 402(e) of the Unemployment Compensation Law (Law), Act of December 5, 1936, Second. Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e) (willful misconduct). In addition, the Board modified the referee's order in determining that Claimant received a non-fault overpayment subject to recoupment under Section 804(b) of the Law, 43 P.S. § 874(b).

The Board made its own findings of fact which can be summarized as follows: The Claimant had been employed as a casual driver and dock worker by Carolina Freight Carrier Company (Employer) until his last day of work, May 27, 1986. As a casual employee, Claimant was considered on call and was assigned work on an as-needed basis. He worked an average of two days per week. On May 1, 1986, Claimant was informed that Employer was in the process of updating its files with regard to casual employees and that Claimant would need to complete several forms to be forwarded to the personnel office. Completion of said forms was a condition of continuing employment. Filling out these forms was necessitated by Employer's decision to handle personnel and payroll matters from the corporate offices in North Carolina rather than at the local terminal. Among the forms to be completed was a psychiatric profile pertaining to employee honesty (Reid test). Claimant reported to his job site to complete the paper work, but, after beginning the psychiatric test, refused to complete it, declaring that the questions offended him. Employer informed Claimant that his failure to take the test would ultimately mean Employer would be unable

[ 111 Pa. Commw. Page 607]

    to provide work for him because his employment file would not be complete. Claimant received two additional work assignments; however, upon transfer of his payroll and personnel records to North Carolina, Claimant was not called for further work assignments. The Board also found that Claimant was not laid off due to lack of work, but that he honestly believed that to be the case and, consequently, that he had so advised the Office of Employment Security. The Board thus determined that Claimant was liable for a non-fault overpayment.

On appeal here, Claimant raises only one argument, that his refusal to submit to the Reid test did not constitute willful misconduct. Although not phrased as such, Claimant's argument seems to be that he had good cause for refusing to take the examination because it was an unreasonably intrusive new condition of employment, it was an inaccurate and unreliable predictor of employee behavior, and it was implemented by Employer in a discriminatory manner. We shall examine these contentions keeping in mind that our scope of review of a Board order is limited to determining whether there has been a constitutional violation or an error of law, and whether the necessary findings of fact are supported by substantial evidence. Kirkwood v. Unemployment Compensation Board of Review, 106 Pa. Commonwealth Ct. 92, 525 A.2d 841 (1987).

[ 111 Pa. Commw. Page 608]

Willful misconduct has been defined to encompass conduct in wanton and willful disregard of an employer's interests, a deliberate violation of an employer's rules, a disregard of the standards of behavior which an employer can rightfully expect of an employee, or negligence manifesting culpability, wrongful intent, evil design or intentional and substantial disregard of either an employer's interests or an employee's duties and obligations. White v. Unemployment Compensation Board of Page 608} Review, 69 Pa. Commonwealth Ct. 196, 450 A.2d 770 (1982). Whether certain actions constitute willful misconduct is a question of law and subject to our review. Id.

It is no accident that, in determining whether an employee's actions fall within the bounds of willful misconduct, there is a need to ascertain some link between the conduct and the job. Thus, a refusal to comply with an employer's directive can constitute willful misconduct. Semon v. Unemployment Compensation Board of Review, 53 Pa. Commonwealth Ct. 501, 417 A.2d 1343 (1980). Here, Claimant's actions constituted such a refusal. The relevant inquiry then becomes whether the refusal was justified. Phrased differently, we must determine if Claimant had good cause or a reasonable basis for his refusal. If he did, then he cannot be held to have committed willful misconduct. McLean v. Unemployment Compensation Board of Review, 476 Pa. 617, 383 A.2d 533 (1978). The employee ...


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