Opinion
No. 1749 C.D. 2012
04-09-2013
AVCO Corporation, Lycoming Engines Division, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE LEADBETTER
Employer Avco Corporation, Lycoming Engines Division, petitions for review of the order of the Unemployment Compensation Board of Review (Board) granting claimant Robert L. Mosley, Sr. unemployment compensation benefits following his discharge from work. The primary issue on appeal is whether Mosley committed willful misconduct when he grabbed a co-worker's shirt and pushed him to move him out of his way. Based upon the Board's findings of fact, we conclude that Mosley did not commit willful misconduct and affirm the grant of benefits.
The Board found the following regarding Mosley's discharge from employment. Employer had a written policy that identified the types of employee conduct, which could result in an immediate discharge (referred to as the "Group 5 violations"). That policy provided, in pertinent part: "[D]isagreements do arise; however, fighting or provoking or instigating a fight on company premises, threatening, intimidating, coercing, or interfering with other employees or supervisors is not permitted." Board's Finding of Fact No. 3. Mosley knew or should have known about this policy.
This policy is part of Employer's "Standards of Conduct and Plant Rules." See Reproduced Record (R.R.) at 54a - 57a. Although not quoted by the Board, the introduction to the Group 5 violations states: "The abuse of the following plant rules would warrant discharge where the offense is so serious and flagrant that any other action would be inappropriate or ineffective and/or where reasonable attempts to apply corrective action have failed . . . ." Id. at 56a.
Mosley worked on an assembly line building airplane engines; he was required to meet a daily quota. Each engine moving through the assembly line had a bill of materials (BOM) that provided the engine's specifications. On April 12, 2012, when Mosley received a particular engine from the assembler performing the previous task, the engine did not have its BOM. Mosley called to the co-worker twice to let him know that he needed the BOM to begin work on the engine. After several minutes, the co-worker came over, perusing the requested BOM rather than giving it to Mosley. Mosley snatched the paperwork from his co-worker, telling him that he did not have the time that the co-worker had to complete the engine. Mosley then walked over to his computer and the co-worker followed him, positioning himself within inches of Mosley's face. Mosley told the co-worker twice to "get out of his face." Id., No. 11. Mosley then grabbed the co-worker's shirt and pushed him out of his way. Thereafter, Mosley left the area and continued to work. After an investigation, Employer discharged Mosley for a Group 5 violation; the co-worker received a written warning.
According to both Mosley and Employer's witness, the BOM indicates which parts the assembler will need for that particular engine/job as well as instructions.
According to testimony adduced by Employer, Mosley was terminated because Employer has a policy of "zero tolerance" for physical contact between employees; "an employee who physically touches an employee or threatens them is terminated." R.R. at 19a.
While Mosley admitted both to Employer and in his testimony before the referee that he physically touched his co-worker, the Board credited his testimony that he was trying to get the co-worker out of his face after asking him twice to move. Accordingly, the Board found that Mosley had good cause for his actions, negating a conclusion of willful misconduct. The Board also found that the co-worker violated Employer's policy, specifically finding that the co-worker instigated a confrontation with Mosley, intimidated him by "getting in his face" and interfered with his work. Board's Decision and Order at 3. Consequently, the Board concluded that Employer treated Mosley disparately when it terminated Mosley but not the co-worker. Benefits were granted and Employer appealed.
On appeal, Employer essentially argues that the Board erred as a matter of law in concluding that Mosley had good cause to violate its rule prohibiting fighting. Employer contends:
Employer also argues that the Board's findings are not supported by substantial evidence of record, however, its arguments in this regard really address whether the Board erred in concluding that Mosley had good cause to touch and push his co-worker and whether Employer wrongfully treated similarly situated employees differently.
Lycoming made a prima facie showing of Mosley's willful misconduct by demonstrating that he engaged in a physical altercation with [ ] his, co-worker. Once Lycoming did so, the law obliged Mosley to rebut that showing by demonstrating that he had good cause for his conduct. Mosley did not introduce such evidence and, therefore, failed to rebut Lycoming's prima facie case. Mosley only testified that [his co-worker] would not "get
out of my face" ([R.R.] 41a). Escalating a confrontation from words into a physical altercation does not demonstrate good cause for the physical altercation.Employer's brief at 13-14. Employer suggests that Mosley had a duty to avoid further confrontation and report his co-worker's conduct to management; instead, he violated the work rule against fighting by initiating a physical confrontation and escalating the situation. Throughout its brief, Employer emphasizes that it has a zero tolerance standard for physical contact between employees.
There can be no dispute that fighting at work is in violation of Employer's established policy as well as the standards of behavior that an employer has the right to expect of its employee. Clark v. Unemployment Comp. Bd. of Review, 452 A.2d 106, 107 (Pa. Cmwlth. 1982). Indeed, in Perez v. Unemployment Compensation Board of Review, 736 A.2d 737, 742 (Pa. Cmwlth. 1999), this court observed that antagonistic physical contact in the workplace, including minor contact such as pushing, should not be condoned. While conduct that is justifiable or reasonable under the circumstances negates a legal conclusion of willful misconduct, see generally Rebel v. Unemployment Compensation Board of Review, 555 Pa. 114, 117, 723 A.2d 156, 158 (1998), we have concluded that an employee lacks good cause or justification for engaging in a physical altercation if the employee could have avoided the confrontation or retreated and sought assistance rather than escalating and continuing the dispute. See, e.g., Perez v. Unemployment Compensation Board of Review, 736 A.2d 737, 741 (Pa. Cmwlth. 1999); Rivera v. Unemployment Comp. Bd. of Review, 526 A.2d 1253, 1256 (Pa. Cmwlth. 1987); Jones v. Unemployment Comp. Bd. of Review, 462 A.2d 950, 951 (Pa. Cmwlth. 1983).
Thus, we agree with Employer that it established a work rule violation. Indeed, we do not depart from the established view that fighting and hostile physical contact violate the standards of behavior an employer has the right to expect of its employees. Nonetheless, the issue here is whether Mosley's actions were reasonable under the circumstances, and in this regard we are bound by the Board's view of the facts concerning Mosley's justification for his conduct. According to the Board's findings, Mosley's co-worker was trying to instigate a confrontation, his conduct was intimidating and he was interfering with Mosley's work. The co-worker acted in a threatening manner, putting his face within inches of Mosley's and refusing to move despite two requests that he do so. Unlike the authorities cited above, the Board here did not find that Mosley had an opportunity to retreat, avoid the confrontation or seek assistance; nor did the Board find that Mosley pushed the other man in a hostile manner or that he escalated the situation. Rather, the Board found that Mosley pushed his co-worker in order to move him out of his face since the co-worker would not move away voluntarily. Thereafter, Mosley returned to work; he did not continue the dispute. We may not re-weigh the evidence, nor substitute our view of the facts for that of the Board. Given the Board's findings, we cannot say that it erred as a matter of law in concluding that Mosley's violation of Employer's policy was justified.
In fact, the Board never found that Mosley engaged in a fight. While the Board made no findings regarding Employer's assertions that it tolerated no physical contact in the workplace, the Board obviously concluded that Mosley's contact violated Employer's policy because it went on to determine whether Mosley had good cause for his actions.
Based on this conclusion, we need not address Employer's argument that it did not engage in disparate treatment. --------
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge ORDER
AND NOW, this 9th day of April, 2013, the order of the Unemployment Compensation Board of Review in the above-captioned matter is hereby affirmed.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge