In the
first case, the claimant – who had worked there since 1979 -- was terminated for violating the employer’s
safety rules by removing stuck objects from a machine without first locking it
out. (Initially, I was impressed that the employer was enforcing its safety
rules without first waiting for an injury – a practice upon which OSHA
frowns). The employer had no less
than three witnesses to the safety violation.
However, the hearing officer did not find them credible. First, the hearing officer found one witness
to be inconsistent regarding his physical location and the series of events
when he supposedly witnessed the claimant violate the lock-out procedures. Second, he also found the shift manager to
lack credibility because he asked a trainee about the lock-out procedures
instead of the claimant and could not explain why he decided to inform management
of the violation instead of confronting the claimant and stopping him from
working in an allegedly unsafe manner. Third,
he found it more likely that management was motivated by the claimant’s prior
NLRB complaints, history of union organizing at the plant and the recent
decertification of the union. Fourth,
the hearing officer refused to give weight to the employer’s video evidence
because the picture quality was so poor that he could not definitely identify
the claimant and had doubts whether it captured the claimant on the day and
machine in question. Fifth, the claimant
credibly testified that he had properly locked-out the machine before clearing
it. Finally, the claimant’s testimony
was supported by another employee who worked on the machine immediately after
him. Once the hearing officer rules on
credibility, that determination may not be reversed on appeal if there is any
evidence in the record to support it.
The claimant and his co-worker provided credible testimony to support
the hearing officer’s determination, so the employer’s appeal was rejected
despite having video evidence.
In the
second case, the claimant’s initial application for benefits was denied and he
appealed, explaining that his employer refused to assist him when his truck
broke down and left him sitting in freezing night-time temperatures for hours
until his son-in-law came to help him.
In response, the employer contended that the claimant was responsible
for minor repairs and had been given a debit card with a $500 limit in order to
do so. Again, unemployment compensation
was denied. On appeal, the claimant testified to a new reason for his
resignation at the unemployment hearing (in which the employer did not
participate). He contended that he had
been driving since 9 a.m. when his truck broke down at 10:30 a.m. and he didn’t
return home until 7 a.m. Federal
Motor Carrier Safety Administration regulations required that he not drive again for 34
hours, or that he at least get a 10 hour break.
49 C.F.R. § 395.3. When he was
called about a noon pick-up in Detroit, he explained that he was
unavailable. His employer arrived at his
home and an argument ensured, during which he resigned. He also produced his driver logs to support
his position. Without contrary evidence in the record, benefits were awarded. The UCBR denied the employer’s request for
review and so the employer appealed to the common pleas court, which reversed
the decision.
The
trial court did not address the claimant’s hours of service explanation for his
resignation, relying instead on his initial and unjustified explanation for his
resignation. ODJFS successfully argued
that the trial court had improperly substituted his judgment for that of the
hearing officer, which was in a better position to evaluate the claimant’s
credibility. By ignoring the claimant’s
testimony about the federal hours of service rules, the court had also
implicitly determined that this argument had been waived when it was no
included in the claimant’s initial application for unemployment benefits and
his initial administrative appeal.
However, there is no provision for waiver in the unemployment statute: “The
unemployment compensation statutes do not provide that arguments not made prior
to an administrative hearing are waived and, in fact, the court must consider
the record transmitted by the UCRC.” Moreover, prior court decisions have found
employees to have just cause to resign when they are directed to violate the
FMCSA hours of service rules.
NOTICE: This summary is designed merely to inform and alert you
of recent legal developments. It does not constitute legal advice and does not
apply to any particular situation because different facts could lead to
different results. Information here can be changed or amended without
notice. Readers should not act upon this information without legal advice. If
you have any questions about anything you have read, you should consult with or
retain an employment attorney.
