Lundy v. Employment Division

BUTTLER, J. Petitioner seeks judicial review of an order of the Employment Appeals Board (Board) denying unemployment compensation benefits because he was discharged for misconduct connected with his work. ORS 657.176(2)(a).1 We paraphrase.the Board’s findings of fact. Claimant was discharged on June 8, 1977, on the grounds that on two separate occasions within a period of less than two months he threatened fellow employes on the employer’s premises during work hours. He had worked for the same employer for about 14 years, and his last job was as a shipping and receiving clerk. The employer had a written rule which prohibited an employe from threatening or intimidating fellow employes, and provided that such action would be cause for reprimanding, demoting, suspending or discharging the violator. In April, 1977, claimant had an altercation with his union steward in which claimant pulled the steward’s beard, touched his chest in a threatening manner, and invited him to step off the premises and fight. The reason for claimant’s anger was his belief that the union steward had caused an increase from two to three days in the length of a layoff which claimant received as discipline for an unrelated operational mistake. The second altercation occurred on June 8, 1977, after claimant had heard from a third party that another employe had made disparaging and bigoted remarks about claimant’s family. Claimant confronted the employe and told him that he would have to answer to claimant if he did not cease making such remarks. [268] There being substantial evidence to support the Board’s findings of fact, we are bound by them. ORS 183.482(7); Cantrell v. Employment Division, 24 Or App 215, 217, 545 P2d 143, rev den (1976). While petitioner does not dispute those findings, he contends that they do not support the conclusion that he was discharged for misconduct connected with his work under ORS 657.176(2)(a). Whether that conclusion is correct is a question of law which this court must decide. Petitioner contends that his involvement in the altercations represented "isolated occurrences of poor judgment and of minor significance” which we have held is not disqualifying misconduct. Dietz v. Smith, 28 Or App 871, 561 P2d 1032 (1977). Compare Hall v. Employment Division, 31 Or App 79, 569 P2d 699 (1977), and Romanosky v. Employment Div., 21 Or App 785, 536 P2d 1277 (1975), in each of which an isolated act was held to constitute misconduct where the act involved a knowing violation or disregard of standards of behavior which the employer has a right to expect of its employes. Whatever may be the rule with respect to an isolated act, it has no application here where there are two acts of misconduct within a relatively short time span. Petitioner would have us conclude that the altercations did not amount to misconduct because, he contends, they were "provoked.” The record is clear, however, that whatever provocation there might have been did not require or even justify petitioner’s response during his working hours on the employer’s premises. In each instance, he was the aggressor. Compare Georgia-Pacific v. Employment Div., 21 Or App 135, 533 P2d 829 (1975), and Weirich v. Employment Division, 19 Or App 479, 528 P2d 105 (1974). Petitioner’s two altercations with fellow employes reveal an inability or unwillingness to control his temper while at work, and his actions violated a [269] reasonable company rule against threatening or intimidating fellow employes. Petitioner was discharged for misconduct connected with his work within the meaning of ORS 657.176(2)(a). Affirmed. Footnotes [1] ORS 657.176(2) provides in pertinent part: "If the authorized representative designated by the assistant director finds: "(a) The individual has been discharged for misconduct connected with his work, ** * * * * * * the individual shall be disqualified from the receipt of benefits * *