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THE NEWS JOURNAL Appellant
vs.
DAVID MCCUNE and THE UNEMPLOYMENT INSURANCE APPEAL BOARD
 
Case:
C.A. No. 95A-09-022-FSS
 
Location:
SUPERIOR COURT OF DELAWARE NEW CASTLE
 
Date:
April 19 1996 Decided
 
Attorneys:
Richard G. Elliott Jr. Esquire and Claudia DelGross Esquire Richards Layton & Finger Wilmington Delaware Counsels for Appellants.
Adam L. Balick Esquire Sidney Balick & Associates Wilmington Delaware. Counsel for Appellee David McCune.
James J. Hanley Deputy Counsel General Carvel State Office Building Wilmington Delaware. Deputy Counsel General for the UIAB.
 
Court:
Fred S. Silverman Court
 
Author:
The Hon. Justice Fred S. Silverman
 

This is an appeal by The News Journal from the decision of the Unemployment Insurance Appeal Board which reversed the findings of an Appeals Referee and granted David McCune unemployment compensation benefits. The Board found Employer failed to prove willful or wanton conduct by Employee sufficient to constitute just cause under 19 Del.C. SEC. 3315(2). Pursuant to 19 Del. C. SEC. 3323(a) Employer now seeks judicial review of the Board's decision.

I.

Employee worked for Employer for 15 years from 1980 until he was fired as District Sales Manager on May 1 1995. Employee was fired because of an altercation with another employee in front of the Rockford Shoppes on April 29 1995. Employer asserts that before it discharged Employee Employer had cited him several times for performance problems. In fact on August 3 1994 Employer presented Employee with a dismal litany of missteps and violations of company policy by Employee during the previous two years and warned him that his next infraction would result in his termination.

Specifically Employer highlights an incident in April 1994. Apparently Employee lost his driver's license for six months because of a Driving Under the Influence conviction. Employee never informed Employer that his license was revoked and he continued to drive while on the job. Only when Employer eventually confronted Employee did he disclose these facts. However Employer chose not to terminate Employee. Instead Employer forced Employee to use two weeks of his vacation. *fn1 That incident lead Employer to notify Employee in writing that:

In [light] of these problems please be advised that your position as District Manager will be terminated upon the next infraction regarding performance or company policy.

Therefore according to Employer it was justified based on the prior warning in discharging Employee after the 1995 altercation and he is not entitled to benefits.

The 1995 altercation began when Employee agreed to finish one of his carrier's routes. While performing this task Employee's car broke down. Employee called Employer. While on the telephone with his supervisor Employee noticed a circulation aide nearby and asked for permission to get the circulation aide to help Employee finish delivering the newspapers. The supervisor gave Employee permission. However the circulation aide would not cooperate with Employee. A quarrel of some sort ensued and the circulation aide announced that he had been fired by Employee. The circulation aide then started to leave the area. Before the aide left Employee tried to retrieve a portable radio which was property of Employer. A wrestling match developed; the radio was dropped and Employee grabbed it. The combatants then went their separate ways. The same day Employee told his supervisor about the altercation. Employee also told his supervisors again the following Monday morning. Employer suspended Employee pending an investigation and eventually fired Employee because of the 1995 altercation. *fn2

II.

An Appeals Referee after hearing testimony *fn3 regarding the scuffle and other background complaints Employer had concerning Employee's job performance held:

It was the claimant and not the [circulation aide] who escalated the incident from mere words to a physical confrontation. Simply put such conduct has no place in employer's business. . . . I conclude the incident of April 29 1995 is sufficient to prove just cause to discharge the claimant.

Employee appealed the Referee's decision to the Board which held its hearing on August 23 1995. As noted Employer presumably after notice failed to attend. Therefore the Board heard only testimony from Employee and argument by his Counsel. The Board reversed the Referee's decision holding:

[The Board] disagrees that the claimant was discharged for just cause. . . . The claimant offered first hand information to the Board concerning the scuffle on April 29 1995 and he denied escalating the verbal dispute to a physical confrontation. This testimony was undisputed before the Board. Although the Referee made a contrary finding there is no basis stated in his decision to support his finding and there is no testimony from [the circulation aide] or witnesses to the scuffle if any. In these circumstances the Board finds that the physical confrontation was not caused by the claimant. The Employer failed to show therefore that the claimant's conduct in regards to the [circulation aide] was an act of willful and wanton conduct. It was a confrontation between coworkers and without more not just cause for discharge.

III.

Employer contends that it is the Board's decision that is not based on substantial evidence adequate to support the finding that Employee was not discharged for just cause. Additionally Employer asserts that the Board's decision is legally erroneous; Employer alleges that both the altercation on April 29 1995 as well as previous instances of misconduct by Employee constitute just cause under 19.Del.C. SEC. 3315(2).

IV.

On appeal from a decision of the Board the Court is limited to determining whether substantial evidence in the record supports the Board's findings and that such findings are free from legal error. Employment Ins. Appeals Board of the Dept. Of Labor v. Duncan Del. Supr. 337 A.2d 308 309 (1975); Longobardi v. Unemployment Ins. Appeal Board Del. Super. 287 A.2d 690 692 (1971) Aff'd Del. Supr. 293 A.2d 295 (1972). Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Oceanport Ind. v. Wilmington Stevedores Del. Supr. 636 A.2d 892 899 (1994); Battista v. Chrysler Corp. Del. Super. 517 A.2d 295 297 (1986) app. dism. Del. Supr. 515 A.2d 397 (1986). Court in its appellate review does not however weigh the evidence determine questions of credibility or make its own factual findings. Johnson v. Chrysler Del. Supr. 59 Del. 48 213 A.2d 64 66 (1965). Court merely determines if the evidence is legally adequate to support the Board's factual findings. 29.Del.C. SEC. 10142(d). Thus Court now must determine if there is sufficient evidence in the record to support the Board's decision [*8] that Employee was not discharged for just cause and is entitled therefore to unemployment benefits under 19 Del.C. SEC.3315(2).

"Just cause" for discharge refers to a willful or wanton act in violation of either the employer's interests or of the employee's duties or of the employee's expected standard of conduct. Abex Corp. v. Todd Del. Super. 235 A.2d 271 (1967). However willful or wanton conduct that constitutes just cause to discharge an employee requires a showing that the employee was conscious of the employee's conduct and recklessly indifferent to its consequences. It does not necessarily mean bad motive ill design or malice. Coleman v. Dept. Of Labor Del. Super. 288 A.2d 285 (1972). Additionally it is the employer's burden to prove "just cause" by a preponderance of the evidence before an employee will be disqualified from receipt of benefits. Short v. Unemployment Insurance Appeal Board Del. Super. C.A. No. 85A-MY-1 Chandler J. (Apr. 2 1986) (Mem. Op.) at 2 aff'd 513 A.2d 1319 (1986). See also Jones v. Health Care Center Del. Super. C.A. No. 92A-12-003 Toliver J. (January 5 1994) (Op.) at 3. (It is employer's burden to prove "just cause" by a preponderance of the evidence before employee may be denied benefits.)

V.

Employer offers several arguments for the proposition that the Board's decision is not supported by substantial evidence and therefore must be reversed. First Employer asserts that Employee's testimony before the Board is inconsistent with his testimony before the Referee. Employer argues that the Board failed to take these inconsistencies into account. Additionally Employer claims the Board ignored the fact that Employee admitted to the Referee that he instigated the fight. *fn4

Court is satisfied that the Board's decision is based on substantial evidence and supported by the record. After considering the record de novo and holding an independent hearing the Board rejected the Referee's factual findings and drew its own conclusions. The Board's decision indicates that after reading what was said before the Referee and hearing the live testimony it chose to give greater weight to Employee's live testimony rather than Employer's version from the record which was based on hearsay.

The Board is free to accept and reject testimony assess the credibility of witnesses and weigh evidence as it sees fit. See Evans v. Tansley Del. Supr. No. 294 1987 Horsey J. (March 29 1988) (Order) at 2 (citing Coleman v. Dept. Of Labor Del. Super. 288 A.2d 285 (1972). To the extent testimony before the Board is inconsistent the Board can harmonize it insofar as possible or if the Board sees fit it can accept or reject the testimony. Thus to the extent Employee's prior testimony was inconsistent the Board's harmonizing it with his live testimony is appropriate. Since the Board's decision is reasonable and the record supports its findings Court will not second-guess the Board.

Court agrees that on the cold record Employee's testimony before the Board seems skewed. However taken as a whole Employee's testimony also is sufficient to clarify any discrepancy in the record from the hearing before the Referee. The Board was free to accept Employee's testimony in lieu of the record submitted. Hence the Board's decision to believe the Employee's story is within its discretion and the story constitutes substantial evidence.

Employer's second position is that the Board ignored the August 3 1994 warning letter to Employee. This argument is unpersuasive. The Board stated that the Driving Under the Influence conviction could not be the basis for the current dismissal. The Board agreed that the August 3 1994 warning letter could support termination for another infraction but found that Employer failed to prove an additional violation. Court agrees. As the Board stated Employer had ample time to punish Employee for that incident. Thus after waiting a full year Employer may not now use the 1994 incident as independent grounds for discharging Employee in 1995.

In short the drunk driving and other performance problems are germane in so far as they establish that Employee's performance was problematic and that he knew that his hold on his job was tenuous. However in light of the Board's factual finding that Employee was not to blame for the April 1995 incident--the straw that broke the camel's back the fact that Employee had been warned does not come into play.

Finally Employer claims the Board committed legal error when it reversed the Referee on the issue of just cause. Employer argues it had just cause to fire Employee because allegedly he was intoxicated during the 1995 altercation at the Rockford Shoppes. However as indicated above Employer never argued to the Referee or the Board that the putative reason for Employee's being fired was drunkenness at the time of the 1995 altercation. Court assumes without deciding that if Employee had been under the influence while working Employer would have had just cause to fire him. Since Employee's sobriety was uncontested by Employer (see footnote 2 supra) and Employer did not pursue the claim that Employee was under the influence during the altercation Court will not consider the issue now.

In closing Court reemphasizes its limited role here. Employee comes across as a personnel problem. It is easy to see why at least in the last of his 15 years of service Employer wanted to be rid of him. It is also regrettable that Employer seemingly is being penalized for showing mercy to Employee when it could have fired him outright in 1994. Nevertheless the Court cannot reweigh the evidence and substitute its view of the facts for that of the Board's. The Board actually heard Employee testify about the altercation. It believed what it heard. As discussed above Employee's version of the disputed facts supports the Board's factual findings and that largely ends the matter for purposes of this appeal. Employee is entitled to unemployment benefits as a result of his discharge.

For the foregoing reasons the judgment of the Unemployment Insurance Appeal Board is AFFIRMED.

IT IS SO ORDERED.

Fred S. Silverman

 
Notes:

*fn1 Employee was due to have his driver's license reinstated during that "vacation."

*fn2 Employer stated immediately following the altercation by way of a suspension letter that "it has been alleged that you were under the influence of a controlled substance while conducting News Journal business." However the actual termination letter states "you were involved in an incident at the Rockford Shoppes. We consider that behavior inappropriate. We are therefore terminating your employment...."

During the administrative hearings below Employer did not press its original claim that drinking on the job played a part in Employee's dismissal. Moreover the record indicates that Employer's Representative told both the Claims Deputy and the Appeals Referee that Employee was fired for a physical altercation with another employee. Before the Referee the Employer's Representative testified that Employee had been "smelling of alcohol" from bartending earlier that day.

Although the Representative also indicated later that she thought Employee may have been drinking she stated "if you say you weren't drunk . . . I'll go with your not being drunk." Employer did not attend the hearing before the Board.

*fn3 Testimony from Employee and from Employer's Representative. Neither the circulation aide nor any other witnesses testified.

*fn4 The Employee's testimony before the Referee states ... I reached for the radio and we got wrapped up in a little wrestling [and] . . . . I went to take the radio from him, and we did wrestle. Otherwise the record does not indicate that Employee admitted starting the fight.