Peery v. Rutledge

• Decision Date: 12 March 1987
• Docket Number: No. 17154,17154
• Citation: 177 W.Va. 548,355 S.E.2d 41
• Court: West Virginia Supreme Court
• Parties: Robert B. PEERY v. Phyllis J. RUTLEDGE, Clerk, Circuit Court of Kanawha County; Richard E. Tyson, Chairman, Board of Review, West Virginia Department of Employment Security; C.C. Elmore, Jr., Member, Board of Review; J.K. Chase, Jr., Member, Board of Review; Adna Irl Thomas, Commissioner, West Virginia Department of Employment Security; and United Auto Warehouse.

Page 41

355 S.E.2d 41

177 W.Va. 548

Robert B. PEERY v. Phyllis J. RUTLEDGE, Clerk, Circuit Court of Kanawha County Richard E. Tyson, Chairman, Board of Review, West Virginia Department of Employment Security; C.C. Elmore, Jr. Member, Board of Review; J.K. Chase, Jr., Member, Board of Review; Adna Irl Thomas, Commissioner, West Virginia Department of Employment Security; and United Auto Warehouse.

No. 17154.

Supreme Court of Appeals of West Virginia.

March 12, 1987.

Syllabus by the Court

1. Disqualifying provisions of the Unemployment Compensation Law are to be narrowly construed.

2. A claimant for unemployment compensation benefits is not guilty of disqualifying "misconduct" when the claimant refuses to perform a job assignment because he or she reasonably and in good faith believes that performance of the job assignment would jeopardize the claimant's own health or safety or the health or safety of others.

3. If the former employer establishes that the unemployment compensation claimant has violated an ordinarily reasonable job assignment directive or work rule, the burden of going forward with the evidence shifts to the claimant to show that he or she was justified, or at least exercised good faith, in not complying with the directive or rule. If the claimant then introduces evidence of his or her reasonable fear of harm to the claimant's or others' health or safety, the former employer must rebut the reasonableness of the claimant's apprehension.

4. A claimant for unemployment compensation does not necessarily waive the right to raise the issue of his or her reasonable and good faith apprehension of harm to the health or safety of the claimant or others by accepting employment with the knowledge that the working conditions involve a health or safety risk.

David B. McMahon, Legal Aid Soc. of Charleston, Charleston, for appellant.

Jack O. Friedman, Dept. of Employment Sec., Nitro, for appellees.

McHUGH, Justice:

Pursuant to W.Va.Code, 21A-7-27 [1970], this case is before this Court upon a writ of certiorari, to review a final order of the Circuit Court of Kanawha County, West Virginia, affirming a final decision of the Board of Review of the West Virginia Department of Employment Security. The Board of Review and the Circuit Court determined that the petitioner, Robert B. Peery, was eligible to receive unemployment compensation benefits but was disqualified from receiving the same for the six-week period provided by W.Va.Code, 21A-6-3(2) [1984] for so-called "simple misconduct." ¹ There is no dispute that the petitioner is eligible to receive unemployment compensation benefits. We reverse the Circuit Court's ruling on disqualification. ²

I

The petitioner was employed as a truck loader and emergency truck driver for United Auto Warehouse ("the employer") from January 18, 1984, to January 3, 1985. On January 2, 1985, the petitioner reported to work at his scheduled time, 2:00 p.m., and did a "bunch of lifting" in performing his duties as a truck loader over the next five hours.

At 7:00 p.m. that evening the employer's warehouse supervisor asked the petitioner to drive a truck that same night because the regular driver was ill. The record does not indicate the size or type of truck he was to drive. The petitioner was asked to drive the truck from Nitro, West Virginia, to Lewisburg, West Virginia, and back. He was authorized to rest three or four hours after arriving at Lewisburg and was to be back to work at Nitro around noon the next day (January 3, 1985). There is no evidence that the truck he was asked to drive had a sleeper cab or that provisions were made for a motel or other place to rest.

The petitioner told the supervisor that he was too tired to try to stay up all night to drive the truck after the work he had already done. He told the supervisor that he was exhausted and was not alert enough to drive the truck over the winding, mountainous route in question. He had become "violently ill" on a prior occasion at about 4:00 in the morning on the same route, and believed that driving the route this time would risk his life or the lives of others.

The employer discharged the petitioner the next day for refusing to drive in an emergency situation, which was one of his duties.

The petitioner subsequently filed a claim for unemployment compensation benefits. A deputy commissioner of the West Virginia Department of Employment Security decided that the petitioner was eligible for such benefits but was disqualified from receiving the same for the statutory period of six weeks because he had been discharged for so-called "simple misconduct." Upon appeal by the petitioner an administrative law judge conducted a de novo evidentiary hearing, made findings of fact and reached the same conclusions as the deputy. The petitioner again appealed, this time to the Board of Review of the West Virginia Department of Employment Security. After reviewing the record the Board of Review affirmed the findings of fact and conclusions of law of the administrative law judge.

Upon appeal by the petitioner the Circuit Court of Kanawha County affirmed the Board's decision. Quoting Bailey v. Rutledge, --- W. Va. ---, 327 S.E.2d 456 (1985), the Circuit Court held: "Certainly[,] refusing a direct order to perform the job for which an employee is hired is misconduct[.]" --- W.Va. at ---, 327 S.E.2d at 458.

II

"Misconduct" disqualifying one from receiving unemployment compensation benefits requires conduct evincing such willful and wanton disregard of an employer's interests as is found in deliberate violations or disregard of standards o[f] behavior which the employer has the right to expect of his employee, ... On the other hand, ... good faith errors in judgment ... are not to be deemed 'misconduct' within the meaning of the statute.

Kirk v. Cole, 169 W.Va. 520, 524, 288 S.E.2d 547, 549 (1982) (emphasis added). Accord, Courtney v. Rutledge, --- W.Va. ---, ---, 351 S.E.2d 419, 422 (1986); Federoff v. Rutledge, --- W.Va. ---, ---, 332 S.E.2d 855, 858 (1985); Cooper v. Rutledge, 169 W.Va. 288, 292-93, 286 S.E.2d 920, 922-23 (1982).

The term "misconduct" should be construed in a manner most favorable to not working a forfeiture. The penal character of the provision should be minimized by excluding cases not clearly intended to be within the exception denying unemployment compensation benefits. Sewell v. Sharp, 102 So.2d 259, 261-62 (La.Ct.App.1958). This Court has likewise concluded that "[d]isqualifying provisions [of the Unemployment Compensation Law] are to be narrowly construed. Bennett v. Hix, 139 W.Va. 75, [84,] 79 S.E.2d 114 [, 119] (1953)." Gordon v. Rutledge, --- W.Va. ---, ---, 337 S.E.2d 920, 922-23 (1985). This principle is a corollary to the well settled principle that "[u]nemployment compensation statutes, being remedial in nature, should be liberally construed to achieve the benign purposes intended to the full extent thereof." Syl. pt. 6, Davis v. Hix, 140 W.Va. 398, 84 S.E.2d 404 (1954). Accord, Courtney v. Rutledge, --- W.Va. ---, ---, 351 S.E.2d 419, 421 (1986); Brewster v. Rutledge, --- W.Va. ---, ---, 342 S.E.2d 232, 234 (1986); Ash v. Rutledge, --- W.Va. ---, --- n. 3, 348 S.E.2d 442, 444 n. 3 (1986); syl., Gordon v. Rutledge, --- W.Va. ---, 337 S.E.2d 920 (1985).

A refusal to comply with a job assignment directive or a work rule may constitute "misconduct" for unemployment compensation purposes. Not every such refusal, however, constitutes such "misconduct." The former employer's job assignment directive or work rule must be reasonable under the particular circumstances, and the unemployment compensation claimant's reason for disregarding the job assignment directive or work rule must be examined to determine whether the claimant was justified, or at least exercised good faith, in not complying with the directive or rule. See, e.g., Moore v. Unemployment Insurance Appeals Board, 169 Cal.App.3d 235, 243, 215 Cal.Rptr. 316, 320-21 (1985), review denied, Sep. 11, 1985; Hughes v. Commonwealth Unemployment Compensation Board of Review, 40 Pa. Commw. 422, 423-26, 397 A.2d 494, 495-96 (1979). See generally annotation, Employee's Insubordination as Barring Unemployment Compensation, 26 A.L.R.3d 1333, § 7 ("Refusal to obey reasonable directive") (1969); 76 Am. Jur. 2d Unemployment Compensation §§ 52, 53, 55 (1975); 81 C.J.S. Social Security and Public Welfare §§ 222, 224 (1977).

A claimant for unemployment compensation benefits is not guilty of disqualifying "misconduct" when the claimant refuses to perform a job assignment because he or she reasonably and in good faith believes that performance of the job assignment would jeopardize the claimant's own health or safety or the health or safety of others. See Amador v. Unemployment Insurance Appeals Board, 35 Cal. 3d 671, 200 Cal.Rptr. 298, 677 P.2d 224 (1984); Smallwood v. Florida Department of Commerce, 350 So.2d 121 (Fla.Dist.Ct.App.1977) (refusal to drive a truck); Webster v. Potlatch Forests, Inc., 68 Idaho 1, 187 P.2d 527 (1947); Ferguson v. Department of Employment Services, 311 Minn. 34, 247 N.W.2d 895 (1976); McLean v. Unemployment Compensation Board of Review, 476 Pa. 617, 383 A.2d 533 (1978) (refusal to drive a truck); Kuhn v. Department of Employment Security, 134 Vt. 292, 357 A.2d 534 (1976). Amador v. Unemployment Insurance Appeals Board, 35 Cal. 3d 671, 200 Cal.Rptr. 298, 677 P.2d 224 (1984), supra, contains this perceptive remark:

It can no longer be maintained that a 'diligent' worker is one who blindly follows his or her employer's orders regardless of the potential consequences. The health [or safety] hazards of the modern work environment--to employees, consumers, and the population at large--are serious and widespread, and the record of employers in controlling those hazards does not inspire such confidence that a reasonable worker can be expected to trust invariably his or her employer's judgment.

35 Cal. 3d at 683, 200...