Tipsword v. Maine unemployment Ins. Comm'n

STATE OF MAINE SUPERIOR COURT

CIVIL ACTION

KENNEBEC, ss. DOCKET NO. AP-01-32

DAR KEI ge ae

DANNY L. TIPSWORD,

Petitioner

Vv. DECISION AND ORDER

MAINE UNEMPLOYMENT

INSURANCE COMMISSION,

Respondent

This matter is before the court on Petition for Review of Final Agency Action

pursuant to 5 M.R.S.A. §§ 11001-11008, 26 M.R.S.A. §§ 1041-1251 and MLR. Civ. P. 80C.

In August, 2000, the petitioner had been a union tinsmith in the sheet metal shop

of Bath Iron Works since May of 1981. Upon expiration of his union's contract with

Bath Iron Works (BIW) on August 27, 2000, the union went on strike. While

participating in the union's picket line, the petitioner yelled offensive comments at non-

striking BIW employees. Alleging that his comments were threatening and intimidating

and in violation of long-standing company rules that were recited in the contract, BIW

fired Tipsword. While there was evidence of complaints from other employees, only

one employee participated in the factfinding hearings that he experienced fear and

intimidation from the petitioner's comments on the picket line. Subsequent to the

firing, petitioner applied for unemployment benefits which were denied by the Deputy

in accordance with statute. The matter was appealed to an Administrative Hearing

Officer who overturned the Deputy's denial and found that Tipsword’s conduct did not

fall within the statutory meaning of misconduct as provided in 26 M.R.S.A. §§ 1043(23)

and 1193(2). BIW appealed this determination to the full Maine Unemployment

Insurance Commission which set aside the Administrative Hearing Officer's findings

and determined that petitioner’s behavior did constitute misconduct connected to his

employment and that he was, therefore, disqualified him from receiving

unemployment benefits. Petitioner now seeks judicial review of the Commission’s

decision pursuant to MLR. Civ. P. 80C.

Tipsword argues the Commissioner erred as a matter of law in finding his

behavior amounted to misconduct as defined. First, he maintains that the Commission

failed to consider his behavior in the proper context. He asserts that the Commission

should use a more relaxed standard of culpability under strike conditions and in

support therefor cites a series of National Labor Relations Board cases that he contends

support the granting of a certain amount of latitude when evaluating picket line

conduct. He urges the court to adopt the standard of misconduct used by the 1st

Circuit, which distinguishes between “hurling crude epithets” and threats of physical

violence. Associated Grocers of New England v. NLRB, 562 F. 2d 1333, 1334 (1st Cir. 1977).

His behavior, he argues, involved no more than crude epithets and the Commission

erred in allowing one employee’s subjective reaction of fear and intimidation to

determine the outcome of the case. Petitioner believes the Commission committed

clear error when it failed to take all of the surrounding circumstances into account.

Secondly, petitioner claims the Commission had insufficient evidence to show his

conduct manifested a disregard for the “material interest” of his employer. This

challenges the finding by the Commission that the interests of BIW in maintaining a

certain employee standard, workplace stability, and a safe atmosphere were all

disregarded by the petitioner through his conduct on the picket line.

Tipsword further points to the Commission’s consideration of eight incident

reports as a clear error of law. The reports were never admitted into evidence, the

Commission never examined the content of the reports, and the existence of the

reports was based on hearsay testimony. As a result, the petitioner could not confront

the contents of the reports nor can a reviewing court examine the evidence of the

substance of the reports for sufficiency.

Finally, petitioner argues the Commission erred in its reliance on the statutory

presumption of misconduct under 26 M.R.S.A. § 1043 (23)(A)(2-3) because the

employee’s alleged violation of the rules occurred after the expiration of the collective

bargaining agreement. Without explicit rules in place and notice to the employee, he

argues, the employer is not entitled to the statutory presumption of misconduct.

In its brief, BIW focuses solely on: whether or not petitioner’s behavior could be

interpreted as a protected activity under strike conditions. BIW urges the court to

consider the standards used by the 1st Circuit in interpreting the National Labor

Relations Act and argues that Tipsword’s behavior under these standards is more

egregious than mere name-calling; they assert that the Commission correctly

determined the activity to constitute verbal intimidation.

Title 26 M.R.S.A. § 1194(8) provides that a person aggrieved by a decision of the

Commission may appeal the same by commencing an action in the Superior Court. In

such an action, the Commission must be made a party defendant to any such appeal.

The Commission urges the court to follow the test for employee misconduct

established by the Law Court in Moore v. Maine Dept. of Manpower Affairs, 388 A.2d 516

(Me. 1978) (holding that a waitress talking excessively with customers, despite

warnings, was not misconduct) and Forbes-Lilley v. MUIC, 643 A.2d 377 (Me. 1994)

(finding that a truck driver’s negligent causation of car accident constituted misconduct).

Under Moore, an employee’s violation of the employer’s rules is not misconduct per se.

Instead, the employee’s conduct must be unreasonable under all circumstances when

viewed objectively. Forbes-Lilley also embraces the objective standard in considering

whether the employee’s conduct amounted to an intentional disregard of the

employer’s interests.

Applying Moore to the case at hand, the Commission points out that BIW had

rules prohibiting violent conduct, including threatening or intimidating behavior.

Although the contract containing those rules had expired, the Commission argues that

it was reasonable for an employer to expect the rules to continue to be observed while

contract negotiations were taking place. In addition, the Commission relied on the

statutory presumption of misconduct provided in 26 M.R.S.A § 1043(23)(A)(3), which

allows the presumption to be based on rules “that should be inferred to exist from

common knowledge or from the nature of the employment.” The Commission

contends that threatening and intimidating behavior exceeds any presumed rules in any

employment setting.

Further, the Commission argues that it did consider the employee’s behavior in

light of the surrounding circumstances as evidenced by the finding that the “employee’s

behavior rises above the level one might classify as permissible striking behavior.”

Commission Decision, 01-C-00281, p. 5. The Commission also found that “[a]lthough

the claimant was on strike . . . he still disregarded his employer's material interest.” Id.

Finally, the Commission argues that any reliance on NLRB cases is inappropriate

as those cases are based on federal law and consider misconduct in a context of the law

of reinstatement after a strike, not as grounds for disqualification from receiving

unemployment benefits. The argument is that the proper basis for evaluation of any

Commission decision is to be found in Maine Employment Security Law at 26 M.R.S.A.

§§ 1041-1251 (Supp. 2001).

When the decision of an administrative agency is appealed pursuant to

MLR. Civ. P. 80C, this court reviews the agency’s decision directly for abuse of

discretion, errors of law, or findings not supported by the evidence. Centamore v. Dep't

of Human Services, 664 A.2d 369, 370 (Me. 1995). In reviewing the decisions of an

administrative agency, the court should “not attempt to second-guess the agency on

matters falling within its realm of expertise” and the court’s review is limited to

“determining whether the agency’s conclusions are unreasonable, unjust or unlawful in

light of the record.” Imagineering v. Superintendent of Ins., 593 A.2d 1050, 1053 (Me.

1991). The focus on appeal is not whether the court would have reached the same

conclusion as the agency, but whether the record contains competent and substantial

evidence which supports the result reached by the agency. CWCO, Inc. v.

Superintendent of Ins., 1997 ME 226, 16, 703 A.2d 1258, 1261. See also Clarke v. Maine

Unemployment Ins. Comm’n, 491 A.2d 549, 552 (Me. 1985) (stating that the “reviewing

court must examine the entire record to determine whether on the basis of all the

testimony and exhibits before the agency it could fairly and reasonably find the facts as

it did”). Credibility determinations are also the exclusive province of the Commission.

See Sprague Electric Co. v. Maine Unemployment Insurance Comm., 544 A.2d 728, 732 (Me.

1988).

A determination of whether violation of company policy comprises misconduct

under the Employment Security Law connected with work requires a two-prong

analysis: a determination not only that the employer has a reasonable standard for

discharge, but also that the employee acted unreasonably in failing to meet that

standard. For purposes of this analysis, reasonableness is an objective standard based

on the circumstances of the case. Wellby Super Drug Stores, Inc. v. Maine Unemployment

Insurance Commission, 603 A.2d 470 (Me. 1992); see also Forbes-Lilley v. Maine

Unemployment Insurance Comm., 643 A.2d 377,379 (Me. 1994). The employer bears the

burden of proving that the employee engaged in misconduct as defined by that law.

See Sprague Electric Co. v. Maine Unemployment Insurance Comm., 526 A.2d 618, 619 (Me.

1988). This court’s review of the Commission’s order is limited to a determination of

whether there was competent evidence to support the Commission’s findings and

whether the Commission has applied the correct law to those findings.

This court must affirm the finding of misconduct by the Commission. The

evidence adduced by BIW, even limited to the employee testimony and videotape of

the picket line, is sufficient competent evidence to support its conclusions. By any

objective standard, the demeanor of the petitioner and the words used were clearly

intended to intimidate a non-striking employee. Since there is no evidence of any

previous relationship between the company's witness and the petitioner, the words and

actions can have no other purpose but that of intimidation. It cannot be argued that a

policy prohibiting such conduct between employees is not fundamental to a safe and

productive workplace and are certainly reasonable standards by any objective

examination. Standing alone, the videotape displays conduct unquestionably

attributable to the petitioner that was designed to evoke intimidation. This evidence of

the employer's witness and the videotape standing alone negates the role of the eight

incident reports not admitted into evidence. While the Commission mentions the eight

incident reports in its summary of the facts of the case and the refusal of the other

employees to testify in the proceedings, there is no further mention of them in the

report and no indication they were improperly considered in the Commission’s analysis

of Tipsword’s behavior. By removing the evidence of the existence of the incident

reports, the evidence still is competent and sufficient to support the Commission’s

findings.

The court does not agree that there is a relaxed standard under the law of Maine

of an employee's behavior during the conduct of a strike but does agree that the

existence of the strike and the picket line are part of the entire context of circumstances

surrounding the misconduct. Indeed, on an individual one-on-one basis its conceivable

that petitioner's conduct would be less intimidating than conducted in the presence of a

large number of similar striking employees addressing themselves to the non-striking

employees.

As a technical matter, the expiration of the contract within which the policies and

questions are contained could technically remove the statutory presumption contained

in 26 M.R.S.A. § 1043(23)(A)(3), in that the specific rules communicated to the employees

by the union contract could also be argued to have expired. However, this error in the

Commission's finding is not fatal as the Commission also cites section 1043(23)(A)(3)

which allows the rules to be inferred from common knowledge. Indeed, it is

undisputed that the petitioner was a 19-year employee of BIW and was well aware of

the policies contained uninterrupted over those many years. As such, it was reasonable

for the Commission to draw that inference allowed in the statute.

Because there is substantial evidence on the record on which the Commission

grounded its decision, and because it committed no abuse of discretion or legal error,

the appeal should be denied.

The entry will be:

The decision of the Maine Unemployment Insurance Commission

in the matter of Danny L. Tipsword, Docket No. 01-C-00281, dated March

26, 2001, is AFFIRMED.

x Ber

Dated:January. , 2002 F

Donald H. Marden.

Justice, Superior Court

Date Filed ___ 4/25/01 Kennebec Docket No. _AP-01-32

County

80C Appeal

Action

J. MARDEN

Danny L. Tipswood State of Maine Unemployment

Insurance Commission

VS.

Plaintiff's Attorney Defendant’s Attorney

James G. Fongemie, Esq. (10/31/01)

James W. Case, Esq. Elizabbeth J. Wyman, AAG Kevin Fitzgerald

4 Union Park Pamela W. Waite, AAG

PO Box 5000 6 State House Station

Topsham ME 04086 Augusta, Maine 04333-0006

Geoffrey Cummings, Esq. (BIW)

PO Box 9546

Portland ME 04112-9546

Date of

Entry

4/26/01 Petition for Review of Final Agency Action with attached exhibit A,

5/4/01

5/8/01

5/24/01

5/25/01

6/12/01

KERKKKKK

7/19/01

8/9/01

8/20/01

8/21/01

filed. s/J. Fongemie, Esq. for J. Case, Esq. (filed 4/25/01)

Case File Notice issued to J. Case, Esq.

Letter entering appearance, filed. s/Wyman, AAG

Letter of Appearance on behalf of Bath Iron Works, filed. s/G.

Cummings, Esq.

Enlargement of time to Serve Administrative Record, filed. s/Wyman, AAG

Proposed Order, filed.

ENLARGEMENT OF TIME TO SERVE ADMINISTRATIVE RECORD, Marden, J.

It is hereby ordered, upon Motion of the Respondent and without objection

by the Petitioner/claimant or the employer, that the deadline for serving

the administrative record is enlarged to June 12, 2001.

Copies mailed to attys. of record.

Administrative Record, filed.

Videotape, filed. (filed in vault drawer)

Notice of briefing schedule mailed to attys of record.

Brief of Petitioner, filed,.s/Case, Esq.

Two pages to be attached to the previously filed transcript (record).

Brief of Employer, Bath Iron Works Corporation, filed. s/Cummings, Esq.

Brief of Respondent Maine Unemployment Insurance Commission, filed.

s/Fitzgerald, Legal Intern s/Wyman, AAG

Letter entering appearance, filed. s/Wyman, AAG

Petitioner's Reply Brief to Bath Iron Works Corporations Brief,

filed. s/J. Case, Esq.