Decision Number 1050-BR-92 - Discharge - Sections 8-1002, 8-1002.1, 8-1003 - Maryland Unemployment Decisions Digest - Appeals

BOARD OF APPEALS

DECISION

Issue: Whether the claimant was discharged for gross misconduct, connected with the work, within the meaning of Section 8-1002 of the Labor and Employment Article.

- NOTICE OF RIGHT OF APPEAL TO COURT -

YOU MAY FILE AN APPEAL FROM THIS DECISION IN ACCORDANCE WITH THE LAWS OF MARYLAND. THE APPEAL MAY BE TAKEN IN PERSON OR THROUGH AN ATTORNEY IN THE CIRCUIT COURT OF BALTIMORE CITY, IF YOU RESIDE IN BALTIMORE CITY, OR THE CIRCUIT COURT OF THE COUNTY IN MARYLAND IN WHICH YOU RESIDE.

THE PERIOD FOR FILING AN APPEAL EXPIRES AT MIDNIGHT ON December 30, 1989.

APPEARANCES

REVIEW ON THE RECORD

Upon review of the record in this case, the Board of Appeals reverses the decision of the Hearing Examiner.

The Hearing Examiner never resolved one of the basic issues of the case, which was whether the claimant was asked on his last day of work to take a whole additional load (of about 14 stops) or half of an additional load (of about seven stops) on the day in question. ¹ The Board finds as a fact that the claimant was asked to take one-half of an additional load on the day in question.

The Board reverses the Hearing Examiner's credibility determination leading to the finding that the claimant "refused to go out on the run because of his concern that he would be in violation of a federal regulation." The claimant did not mention this concern on the day in question, and the Board finds that this concern formed no part of his reason for refusing the work.

Even if the claimant had refused because of such a concern, a further finding would have to be made as to whether the concern was reasonable. The Board concludes that such a concern would have been unreasonable. The proffered concern was that the route would take over ten hours to complete. But, in fact, the route was completed by another in seven hours. Even if the claimant had refused because of this concern, this concern was so unreasonable that it would not have been an excuse.

The claimant simply refused to help out and take some extra stops on his route when one of the other drivers was ill. Covering for sick drivers was standard procedure and-necessary in the employer's business. others had covered for the claimant in the same way when he was ill. The extra load did not make the claimant's work load excessive, even for that one day.

The claimant's refusal was a deliberate violation of standards the employer had a right to expect, showing a gross indifference to the employer's interest. This is gross misconduct within the meaning of Section 8-1002 of the Labor and Employment Article.

DECISION

The claimant was discharged for gross misconduct, connected with the work, within the meaning of Section 8-1002 of the Labor and Employment Article. He is disqualified from receiving benefits from the week beginning February 2, 1992 and until he becomes reemployed, earns at least ten times his weekly benefit amount ($2,230.00) and thereafter becomes unemployed through no fault of his own.

The decision of the Hearing Examiner is affirmed.

Thomas W. Keech, Chairman
Donna P. Watts, Associate Member

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COPIES MAILED TO:

CLAIMANT
EMPLOYER
Frank Solomon, Esquire
UNEMPLOYMENT INSURANCE - BALTIMORE

¹ The decision's recitation of what the testimony was, "according to the employer," and which version of events "the claimant insisted upon," is not a finding of fact.

LOWER APPEALS DECISION

DECISION

Issue: Whether the claimant was discharged for gross misconduct connected with the work, within the meaning of MD Code, Labor and Employment Article, Title 8, Section 1002.

- NOTICE OF RIGHT OF FURTHER APPEAL -

ANY INTERESTED PARTY TO THIS DECISION MAY REQUEST A FURTHER APPEAL AND SUCH APPEAL MAYBE FILED IN ANY OFFICE OF THE DEPARTMENT OF ECONOMIC AND EMPLOYMENT DEVELOPMENT, OR WITH THE BOARD OF APPEALS, ROOM 515, 1100 NORTH EUTAW STREET, BALTIMORE MARYLAND 21201, EITHER IN PERSON OR BY MAIL.

THE PERIOD FOR FILING A FURTHER APPEAL EXPIRES ON APRIL 28, 1992.

NOTICE: APPEALS FILED BY MAIL INCLUDING SELF-METERED MAIL ARE CONSIDERED FILED ON THE DATE OF THE U.S. POSTAL SERVICE POSTMARK.

APPEARANCES

FINDINGS OF FACT

The claimant was employed at Saval Foods as a driver from November 2, 1990 until February 4, 1992, at a pay rate of $9.25 per hour.

The claimant received a warning on October 3, 1991, because he had not been following call in procedures and because he had been insubordinate, although the nature of the insubordination was not specifically indicated (Employer's Exhibit No. 1).

On February 4, 1992, another driver, Steve, called in sick. The claimant, who already had 14 stops scheduled, was asked to pick up some of the load for Steve. According to the employer, the claimant was only asked to handle six or seven additional stops, half of Steve's run. The claimant insisted that he was asked to handle the entire route of Steve, which would have given him a total of 27 stops to do in one day. The claimant was concerned that he could not complete the entire run in less than ten hours and that would be in violation of the Federal Department of Transportation Regulations.

As a commercial driver, he was required to sign a log book, although, the employer did not provide him with any. The claimant refused to go out on the run at all because of his concern that he would be in violation of the federal regulation.

The claimant was terminated (Employer's Exhibit No. 2 and 3).

CONCLUSIONS OF LAW

The term "misconduct," as used in the Statute means a transgression of some established rule or policy of the employer, the commission of a forbidden act, a dereliction from duty, or a course of wrongful conduct committed by an employee within the scope of his employment relationship, during hours of employment or on the employer's premises within the meaning of the Maryland Code, Labor and Employment Article, Title 8, Section 1003. (See Rogers v. Radio Shack, 271 Md. 126, 314 A.2d 113).

In making a determination of gross misconduct, the finder of fact must not look simply at the substandard conduct, but for a willful and wanton state of mind accompanying the engaging in substandard conduct. Where conduct demonstrates an utter disregard of an employee's duties and obligations to the employer, and is calculated to disrupt the discipline and order requisite to the order of proper management of a company, a finding of gross misconduct is supported. Employment Security Board v. LeCates, 218 Md. 202, 145 A.2d 840 (1958).

It is the employer's burden to prove by a preponderance of the evidence that the claimant did indeed commit the gross misconduct or misconduct alleged. The preponderance of the credible evidence presented demonstrates that the claimant did refuse to drive a load of food on February 4, 1992. The claimant had previously been warned about insubordination. However, the employer failed to meet its burden of proving by a preponderance of the credible evidence that the claimant's action rose to the level of gross misconduct.

DECISION

It is held that the claimant was discharged for misconduct connected with the work, within the meaning of the MD Code, Labor and Employment Article, Title 8, Section 1003. Benefits are denied for the week February 2, 1992, and for the nine weeks immediately following.

The determination of the Claims Examiner is reversed.

Ann E. Singleton, Hearing Examiner

Date of hearing: 3/27/92
Specialist ID: 01061
ah/Mailed copies on 4/13/92 to:

Claimant
Employer
Unemployment Insurance - Baltimore MABS

FRANK S. SOLOMON
ATTORNEY AT LAW