Lewis v. UCBR - Cmwlth. Court - April 16, 2012
Proof of employer rule
The employer failed to present adequate evidence of the rule that claimant was accused of violating. - An employer witness provided the only evidence regarding a work policy when he stated, in response to a question about whether Claimant should have known that a heated argument was prohibited in the workplace, “We have rules and regulations and also we have [a] harassment policy.” Critically, Employer did not identify any specific rule or policy that Claimant violated, nor did it present any documentary evidence of such a policy.
Testimony that Employer has “rules and regulations” and a “harassment policy” is insufficient to establish the type of policy that the UCBR found Claimant violated. See Pennsylvania National Insurance Company v. UCBR, 531 A.2d 832, 834 (Pa. Cmwlth. 1987) (finding no willful misconduct where there was no evidence of a specific rule that the claimant violated); Goodson v. UCBR, 424 A.2d 1019, 1020 (Pa. Cmwlth. 1981) (finding no willful misconduct where the employer’s witnesses failed to specify what company regulation the claimant violated). Even if Employer had proven the existence of a policy, however, the UCBR made no finding that Claimant was aware or should have been aware of it. Therefore, we conclude that Employer failed to prove Claimant’s deliberate violation of a work rule.
Threats to a co-worker
While it is true that threats of harm toward a co-worker (CW) may disqualify an employee from receiving benefits, see Andrews v. UCBR, 633 A.2d 1261, 1263 (Pa. Cmwlth. 1993), there is no evidence here that Claimant threatened a co-worker. The only evidence Employer presented regarding any threat was Claimant’s written statement that the co-worker said that he [the co-worker] carries guns and Claimant’s response that he had been shot before and was not afraid of guns. Claimant himself did not threaten to use firearms. According to Claimant, the CW then "went on about how [tough] he was and I went on about how [tough] I was to [sic]."
An employee’s remark to another employee that he is "tough," without more, cannot be construed as a threat of physical harm disqualifying him from receiving benefits. See Blount v. UCBR, 466 A.2d 771, 773 (Pa. Cmwlth. 1983) (noting that, where an employee’s offensive remark to another employee was justifiably provoked and of a de minimis nature, it did not constitute willful misconduct).7 Furthermore, the UCBR made no findings, nor was there any evidence, that Claimant used profanity or offensive language during the argument or that there was any physical contact between the two men. Thus, we cannot conclude that Claimant’s behavior rose to the level of willful misconduct.
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