McLean v. Unemployment Compensation Board of Review

Opinion by Judge Crumlish, Jr., Donald W. McLean (Claimant). appeals to this Court from an order of the Unemployment Compensation Board of Review (Board) which affirmed a referee’s decision modifying the Bureau of Employment Security’s determination. The Board’s denial was based on a conclusion that Claimant was properly discharged because of wilful misconduct. The Board therefore approved the referee’s findings of fact and conclusions of law that Claimant was ineligible pursuant to Section 402(e) instead of Section 401(b)(1).1 Claimant contends that the Board erred in its conclusion that Perlite Manufacturing Company (Employ [272] er) did in fact meet its burden in establishing that the actions of Claimant constituted wilful misconduct. He argues that the action of Employer ordering him to drive a truck in disrepair was unreasonable. We would agree with Claimant, if the facts were as he believed them to be. However, Claimant was discharged because he refused to drive the truck if it was repaired by CNS Service Company. In effect, he was informing Employer to comply with his wishes. Phrased differently, he was substituting his judgment for that of his employer. The Board, in affirming the referee, found, inter alia: “2. On March 19, 1975, claimant complained to the employer that the truck he had operated that day was not operating properly. “3. The employer advised the claimant he would take the truck to a garage for repairs. “4. Claimant informed thé employer that if the truck was taken back to the same garage where it had previously been worked on, he would not drive the truck. “5. Claimant was discharged because he refused to perform the duties of the job with the employer’s equipment that was available to him. ’ ’ After a careful review of the testimony in this case, we hold that these findings of the Board are supported by the evidence. Further, we note that an employe’s direct refusal to perform an assigned duty given by the employer meets the legal test of wilful misconduct. Unemployment Compensation Board of Review v. Homsher, 21 Pa. Commonwealth Ct. 576, 347 A.2d 340 (1975). Accordingly, we Order And Now, this 14th day of September, 1976, the decision and order of the Unemployment Compensation Board of Review is affirmed. Footnotes [1] Unemployment Compensation Law, Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §751 et seq.