79 Pa. Commw. 440 | Pa. Commw. Ct. | 1984
Opinion bt
Michael L. Barksdale (claimant) appeals here an order of the Unemployment Compensation Board of Review (Board) which affirmed a referee’s denial of benefits 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).
The claimant was last employed as a janitor for Commercial Property Services, Inc. (employer). A dispute arose among the claimant, the employer and the union regarding the deduction of union dues from the claimant’s paycheck. The procedure had been for the employer to deduct union dues automatically from employee paychecks and to submit the fees so collected to the union. The claimant had previously signed the prescribed union dues deduction authoriza
The employer, of course, has the burden of proving the assertion that a claimant was discharged for willful misconduct. Unemployment Compensation Board of Review v. Bacon, 25 Pa. Commonwealth Ct. 583, 361 A.2d 505 (1976). And where, as here, the party with the burden of proof has prevailed below, our scope of review is limited to question of law and a determination as to whether or not the Board’s findings are supported by substantial evidence. Jula v. Unemployment Compensation Board of Review, 48 Pa. Commonwealth Ct. 353, 409 A.2d 953 (1980).
The claimant argues first that the findings were not supported by substantial evidence, asserting that he was provoked into his action by his inability to resolve his problem amicably, and that what he did cannot be said to rise to the level of willful misconduct as defined in Kentucky Fried Chicken of Altoona, Inc. v. Unemployment Compensation Board of
Here, however, the claimant violated a known and reasonable company rale, and snch an act may constitute willful misconduct unless justification or good cause for the rule violation can be shown. Frumento v. Unemployment Compensation Board of Review, 466 Pa. 81, 351 A.2d 631 (1976). The claimant’s frustration due to the lack of a solution satisfactory to him was clearly no justification for his rule violation, and, as we held in Rodrigques v. Unemployment Compensation Board of Review, 58 Pa. Commonwealth Ct. 362, 427 A.2d 1255 (1981), a denial of benefits under the willful misconduct provision was justified where the claimant destroyed company property and we noted there that the “employee’s actions . . . cannot be justified merely because the employee was acting ‘out'of frustration’ ”. Id. at 366, 427 A.2d at 1256.
The claimant also asks for a remand, alleging that the referee failed to comply with 34 Pa. Code §101.21 (a) which provides:
In any hearing the tribunal may examine the parties .and their witnesses. Where a party is not represented by counsel the tribunal before whom the hearing is being held should advise him as to his rights, aid him in examining and cross-examining witnesses, and give him every assistance compatible with the impartial discharge of its official duties.
The record indicates, however, that the referee here did advise the claimant of his right to have an attorney represent him at the hearing, to present witnesses in his behalf and to cross-examine those witnesses presented against him. And, the claimant argues further that, although the referee perfunctorily advised him of these rights, there was no effort made
The order of the Board is, therefore, affirmed.
Order
And Now, this 10th day of January, 1984, the order of the Unemployment Compensation Board of Review in the above-captioned matter is hereby affirmed.