RENDERED: March 3, 2000; 10:00 a.m.

NOT TO BE PUBLISHED

C o m m o n w e a l t h O f K e n t u c k y

C o u r t O f A pp e a l s

NO. 1998-CA-002945-MR

ERIC A. BARLOW APPELLANT

APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE ERNEST JASMIN, JUDGE

ACTION NO. 98-CI-002023

CON-WAY CENTRAL EXPRESS, INC. AND KENTUCKY UNEMPLOYMENT INSURANCE COMMISSION APPELLEES

OPINION AFFIRMING ** ** ** ** **

BEFORE: BUCKINGHAM, GUIDUGLI, AND KNOPF, JUDGES.

GUIDUGLI, JUDGE: Eric A. Barlow (Barlow) appeals from the opinion and order of the Jefferson Circuit Court entered on October 28, 1998, which affirmed the Kentucky Unemployment Insurance Commission's (KUIC) order affirming the referee's determination that Barlow was disqualified from receiving unemployment benefits because he was discharged for misconduct related to his work. After reviewing the record, we affirm.

On July 16, 1997, Barlow, a truck driver, reported to the Con-Way Central Express, Inc. (CCX) Louisville terminal as scheduled and clocked in at 8:30 P.M. At 9:30 P.M., he departed the Louisville terminal en route to Indianapolis, Indiana. 

Barlow arrived at the Indianapolis terminal at midnight and was promptly put to work unloading trucks with a forklift. Around 4:00 A.M., Barlow was informed by his supervisors that he had to deliver and pick up a load in Vincennes, Indiana before he could return to Louisville. Barlow advised them that he could not make the trip to Vincennes and return to Louisville without exceeding the 15- hour maximum "on-duty time" allowed by Department of Transportation (DOT) regulations. CCX supervisors instructed1 Barlow to make the run to Vincennes. When Barlow left the Indianapolis facility at 5:30 A.M., he decided to proceed directly to Louisville rather than deliver the load to Vincennes. After arriving in Louisville at 8:00 A.M., Barlow clocked out and went home. David Dennison, CCX's Louisville manager, called Barlow at home and discharged him for failing to obey his supervisor's instruction.

On November 9, 1997, Barlow filed a claim for unemployment insurance benefits with the Department of Employment Services. On December 12, 1997, the Division of Unemployment Insurance issued a "Notice of Determination," which found that Barlow was disqualified from receiving benefits because he was discharged for misconduct related to work. Barlow appealed the "Notice of Determination" to an insurance referee. Kentucky Revised Statute (KRS) 341.420(2). After conducting an evidentiary hearing, the referee determined that Barlow's failure to follow his supervisor's instruction to make the run to Vincennes was without good cause. Therefore, the referee concluded that Barlow's discharge was for misconduct connected to work under KRS 341.370(1)(b). Barlow appealed the referee's decision to the KUIC, which affirmed the referee's decision. KRS 341.430. Pursuant to KRS 341.450(1), Barlow appealed the order to the Jefferson Circuit Court. On October 28, 1998, the circuit court affirmed the KUIC's order. This appeal followed. KRS 341.450(4).

The standard of review of a decision of the KUIC was properly set forth in Burch v. Taylor Drug Store, Inc., Ky. App., 965 S.W.2d 830, 834-835 (1998), which provides:

The findings of fact of an administrative agency which are supported by substantial evidence of probative value must be accepted as binding by the reviewing court. Kosmos Cement Co. v. Haney, Ky., 698 S.W.2d 819, 820 (1985). The court may not substitute its opinion as to the weight of the evidence given by the [KUIC]. McCracken County Health Spa v. Henson, Ky. App., 568 S.W.2d 240, 242 (1977). Upon determining that the [KUIC]'s findings were supported by substantial evidence, the court's review is then limited to determining whether the [KUIC] applied the correct rule of law. Southern Bell Telephone & Telegraph Co. v. Kentucky Unemployment Insurance Commission, Ky., 437 S.W.2d 775, 778 (1969).

A worker is not eligible to receive unemployment benefits if "[h]e has been discharged for misconduct . . . connected with his most recent work . . . ." KRS 341.370(1)(b). Included within the illustrative list of what constitutes "discharge for misconduct" under 341.370 is discharge for "refusing to obey reasonable instructions." KRS 341.370(6). Barlow contends that his supervisor's instruction to deliver and pick up a load in Vincennes before returning to Louisville was not a reasonable one and would have required him to violate federal regulations. Thus, he argues that he was not discharged for misconduct and is eligible for unemployment benefits.

In City of Lancaster v. Trumbo, Ky. App., 660 S.W.2d 954 (1983), the court found substantial evidence in the record to support the discharge of four sanitation workers who had refused to clean up the public square. In determining whether there was substantial evidence, the court stated: An employee is obligated to render loyal, diligent, faithful and obedient service to his employer and failure to do so is a disregard of the standards of behavior which the employer can expect of his employee. Brown Hotel Company v. White, Ky., 365 S.W.2d 306 (1963). There is no right to reject the tasks of employment on the basis that work methods have changed and the employee suspects (without trying it) that he will be unable to satisfactorily do the new assignment. Kentucky Unemployment Insurance Commission v. Day, Ky., 451 S.W.2d 656 (1970). Where an employee manifests an intent to disobey the reasonable instructions of his employer, the denial of unemployment compensation benefits on the basis of misconduct is proper. Brown Hotel Company, supra; 76 Am. Jur. 2d Unemployment Compensation $ 55. Id. at 956. After reviewing the record, we believe that there is substantial evidence to support the finding that Barlow was "discharged for misconduct," as the term is defined in KRS 341.370.

Barlow had never made the run between Indianapolis and Vincennes before that night. Barlow's opinion, that he could not successfully complete the run within the 15-hour maximum "on duty time," was based on information he apparently received from another truck driver. Despite the assurances of several supervisors working at the Indianapolis site, Barlow decided on his own that he was not going to make the run. If Barlow had tried to complete the run and discovered that he would exceed the applicable time period, then it would have been up to CCX to remedy the situation. At the hearing, David Dennison testified that there were occasions when drivers were unable to complete their assigned runs within the regulated time period. However, in those instances, the driver would merely call ahead of time and someone from CCX would meet them at a designated area to switch drivers. In other circumstances, CCX had also paid drivers to stop and stay at a motel. Having established that there is substantial evidence to support the determination that the instruction given to Barlow to make the run to Vincennes was a reasonable one, we find that the KUIC correctly applied KRS 341.370(1)(b) in disqualifying Barlow from receiving unemployment benefits.

Based on the reasons stated above, the Jefferson Circuit Court opinion and order entered on October 28, 1998, is hereby affirmed.

ALL CONCUR. BRIEF FOR APPELLANT: Jonathan C. Hardy Louisville, Kentucky

BRIEF FOR APPELLEE, KENTUCKY UNEMPLOYMENT INS. COMMISSION:

Randall K. Justice Frankfort, Kentucky