Monday, August 13, 2012

UC - willful misconduct - bad language - "moron"

Brown v. UCBR - Cmwlth. Court - August 9, 2012


http://www.pacourts.us/OpPosting/Cwealth/out/1618CD11_8-9-12.pdf

The Board held that two signs Claimant posted in the workplace were threatening in nature and very offensive because they used the word "moron."

Claimant acknowledged that he posted the signs but explained that he did so to prevent his co-workers from attempting to use an inoperable battery, which could be hazardous. Claimant testified that one of his work duties was to ensure that batteries needing repair were kept out of circulation and set aside in a designated space. Each out-of-service battery is labeled with a sign reading “Do Not Use.” When Claimant reported to work the week of February 13, 2011, he discovered that someone had torn the “Do Not Use” sign off of an out-of-service battery and had attempted to charge and use it before it had been repaired. Claimant reported the matter to his supervisor, who directed Claimant to return the battery to the out-of-service space, and Claimant did so. Claimant then placed two hand written signs on the battery that read “To the moron who can’t read do not use this, do not use this battery” and “Not charging you moron.”

An employee’s use of abusive, vulgar or offensive language with a superior is a form of insubordination that can constitute willful misconduct, even if the employer has not adopted a specific work rule prohibiting such language. Allen v. Unemployment Compensation Board of Review, 638 A.2d 448, 451 (Pa. Cmwlth. 1994). Where an employer has adopted a policy against the use of obscene or abusive language with other employees or customers, violation of that rule may constitute willful misconduct. Brandt v. Unemployment Compensation Board of Review, 537 Pa. 267, 643 A.2d 78 (1994). However, the context in which the profanity or other proscribed language is used must be considered. Bush v. Unemployment Compensation Board of Review, 409 A.2d 523, 524 (Pa. Cmwlth. 1980) (holding that in the absence of evidence on context, a claimant’s admission to using profanity "at times" did not constitute willful misconduct). In any case, the language used must be examined to determine whether it is, in modern parlance, abusive, vulgar or offensive. Cundiff v. Unemployment Compensation Board of Review, 489 A.2d 948, 951 (Pa. Cmwlth. 1985). Willful misconduct is not proven where use of the proscribed language was provoked or is de minimis in nature. Id. at 950.

Here, Claimant worked in a 770,000 square foot warehouse along with 605 employees. This was not a ladies club where the servers wear white gloves and speak in hushed tones. Employer produced no evidence that "moron" and words like it were not used and not tolerated at its facility. It is telling that when Claimant was called a "jackass" by his supervisor, no discipline was imposed on the speaker. The incident established that in Employer’s warehouse the use of offensive language, such as "jackass" and "moron," might require an apology but not a discharge. Notably, "jackass," a stronger word than "moron," was uttered in a more troubling context because it was directed by a supervisor to his subordinate. Management should be held to a higher standard of conduct. Claimant did not direct the term "moron" to his superior, which could be insubordination if unprovoked. Allen, 638 A.2d 448, 451. Indeed, Claimant did not direct "moron" to any specific individual or co-worker, as the Board itself acknowledges.

Because "moron" is neither a threatening word nor a word totally outside the bounds of what one might expect to encounter in a large and busy warehouse, we conclude that Claimant’s use of the word "moron" did not rise to the level of willful misconduct. Therefore, we reverse the Board. "Moron" was neither threatening nor far outside the bounds for what words might be spoken in a large and busy warehouse. Claimant did not commit willful misconduct. In addition, Claimant’s use of "moron" was de minimis and provoked by the dangerous negligence of some unknown co-worker who attempted to charge an inoperable battery. Cundiff, 489 A.2d at 951.

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This summary is also posted at the PLAN Legal Update http://planupdate.blogspot.com/, which is searchable and can be accessed without a password.



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