92 Pa. Commw. 404 | Pa. Commw. Ct. | 1985
Opinion by
This is an appeal by Sonat Marine, Inc. (Employer) from an order of the Unemployment Compensation Board of Review (Board) reversing a referee’s determination that Gregory Moore (Claimant) was ineligible for benefits pursuant to Section 402(e) of the Unemployment Compensation Law (Law),
The Board, in reviewing the referee’s decision,
In addition the Board made six additional findings as follows:
4. The claimant complained to the captain of the vessel about the situation.
5. The captain said he could not do anything about it but if the claimant wanted to get off the vessel he could do so.
6. The captain actively aided the claimant in leaving the vessel.
7. The claimant left the vessel in order to contact the union and the employer directly about the existing situation.
8. The claimant contacted both parties regarding the situation.
9. The claimant was informed by the employer that the situation would be rectified with the crew member and that he would be able to come back in two (2) weeks.
Based upon its review of the record and its additional findings the Board reversed the referee and held that Claimant had not committed an act of disqualifying willful misconduct.
We will first examine the four disregarded findings to see whether contradictory evidence existed with respect to them. The referee’s finding relating to the personnel policy is supported by the testimony of Employer’s personnel representative. But Claimant testified that he was unaware of any policy on terminating employees who left the vessel and his witness, who had worked for Employer for eleven years, was also uncertain as to any such policy. From this the Board could properly conclude no policy existed (or at least no policy of which the employees were aware) and, so, disregard the referee’s finding. Even the Employer’s witness testified that she was uncertain whether policies on leave were written down. We would note that where the alleged willful misconduct is the violation of a rule the burden is on the Employer to prove both the rule and the fact of its violation. Teasley v. Unemployment Compensation Board of Review, 60 Pa. Commonwealth Ct. 428, 431 A.2d 1155 (1981).
The finding that no threat was made by the crew member is uncontradicted. While Claimant testified he feared injury, he also clearly testified that no threats were made to him. Additionally, the reasons given by the Board for disregarding the findings do not relate to this finding. Hence, we reinstate this finding. Treon.
As to whether the Claimant requested permission to leave the vessel, the evidence, both pro and con, is based upon inferences. Claimant never testified that he specifically asked for and received permission. The captain never testified at all.
■-’The final finding’, the omission of which is challenged, relates'to whether Claimant, when he was asked if he wanted to return to the vessel, responded in the negative.- The referee found that he did -so and competent evidence exists to support this. The Board omitted this finding resolving the issue in favor of Claimant who- testified that he was told by personnel that everything would be straightened out and he was to come back to work in two weeks. Additionally a personnel representative testified that when asked about going back on the boat (presumably immediately) Claimant said he did not want to go back (not that he would not) because he was afraid he
Having determined that except for the finding relating to possible physical harm the Board did not violate Treon, we now proceed to examine the Board’s findings (including the referee’s reinstated finding) to determine whether the Board’s determination that no willful misconduct occurred can stand.
Under the Board’s analysis Claimant engaged in an argument (but was not threatened) and reported to the captain who maintained he could do nothing with respect to the crew member. The captain then assisted Claimant in leaving the vessel. After leaving the vessel, Claimant contacted the union and the Employer and was told he would be able to return to work in two weeks. Claimant was discharged for failing to finish his tour of duty and leaving the vessel without authority. Under the Board’s findings Claimant was relieved of his tour of duty and was permitted to leave the vessel. Thus the Board was correct in concluding that no willful misconduct occurred, and accordingly, their decision is affirmed.
Now, October 24, 1985, the order of the Unemployment Compensation Board of Review, No. B-227541, dated February .17, 1984 is affirmed.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended.
Subsequent to the referee’s decision, the Board ordered a remand and directed that a hearing officer take additional testi
The Board’s power to make the additional findings is not challenged.
The Board stated:
The record in the instant case is replete with conflicting testimony- which the Board resolves in favor of -the claimant. However, the claimant’s testimony is uncontroverted by any competent testimony or evidence that he was given permission by the captain to leave the vessel. That action of leaving the vessel with permission can not be considered a violation of the employer’s rule. The claimant is deemed eligible for benefits under the aforementioned Section of the Law.
There was a memorandum admitted into evidence without objection which memorandum was written by a personnel repre
Although we could order a remand for the Board to assess the evidence with the reinstated finding we will not do so because the reinstated finding goes to the issue of good cause and, as will be seen, it is unnecessary to reach that issue.