S.S. #: ***********

Employer's Name, Address & Reg. No.

E.R. #: 00-000-15

Board Case No.: 281-BR-08

Referee Case No.: 3825-AA-07

Date mailed to interested

parties: March 28, 2008

DECISION OF THE BOARD OF REVIEW

I. CASE HISTORY AND JURISDICTION

By a decision issued on November 9, 2007, the administrator ruled the claimant ineligible for unemployment benefits effective October 7, 2007. On November 15, 2007, the claimant appealed the administrator's decision to the Hartford office of the appeals division. The appeals division scheduled hearings of the appeal for December 6, and December 27, 2007, and January 8, 2008, which the claimant and employer attended. By a decision issued on January 24, 2008, Associate Appeals Referee Miguel A. Rivera affirmed the administrator's ruling.

The claimant filed a timely appeal to the board of review on February 13, 2008. Acting under authority contained in General Statutes § 31-249, we have reviewed the record in this appeal, including the tape recording of the referee's hearing.

II. ISSUE

The referee ruled that the employer suspended the claimant's employment for wilful misconduct in the course of the employment. In support of this appeal from the referee's decision, the claimant contends that the referee's findings of fact, including the finding that he had good cause for refusing to return to work when his arbitration hearing ended at 11:30 a.m., are inconsistent with a conclusion that he engaged in wilful misconduct. He maintains that he had good cause for attending to the union's business after 11:30 a.m. on August 14, 2007. In support of his appeal, the claimant also maintains that the referee erred in determining that the testimony of his witness, Frank Gerardi, would be irrelevant and in not permitting Gerardi to testify. He alleges that Gerardi would have confirmed that the claimant telephoned management to request vacation time for August 14, and that management would not accept his call. The issue before the board is whether the employer discharged the claimant for wilful misconduct in the course of the employment.

III. PROVISION OF LAW

Section 31-236(a)(2)(B) of the General Statutes provides that an individual shall be ineligible for benefits if it is found that the individual was discharged or suspended for wilful misconduct in the course of the employment, defined as deliberate misconduct in wilful disregard of the employer's interests or as a single knowing violation of an employer's reasonable and uniformly enforced rule or policy, when reasonably applied, unless the violation is due to an employee's incompetence. The ineligibility for benefits will be in effect until such individual has earned at least ten times his or her weekly benefit rate.

IV. FINDINGS OF FACT AND CONCLUSION OF LAW

The board adopts the referee's findings of fact, except that we add the following findings of fact:

11. After the claimant's arbitration hearing ended at 11:30 a.m. on August 14, 2007, and the employer's labor relations officer, David Dunn, advised the claimant that he had to return to work, the claimant became agitated. The claimant replied that he was on the union grievance committee for another hearing and he did not have to go back to work. After Dunn repeated that he had to return to work, the claimant jumped out of his seat, went across the room to where Dunn was walking and held a tape recorder near his face. He proceeded to follow Dunn around the room with the tape recorder. The claimant shouted at Dunn, asking him what he was trying to do and to show him where the contract provided he had to comply. He also asked him why he was harassing him and 'taking money out of [his] pocket.' He said, 'What's the matter? You don't like Puerto Ricans?' The fire chief, Brian Rooney, was present in the hearing room throughout the exchange. The claimant turned to Rooney and asked him if he had anything to say.

12. The union president, Robert Whitbread, advised the claimant to stop and the claimant refused. Robert Massa, the management arbitrator heard the claimant's raised voice and notified a security guard. He returned to the hearing room, warned him that the security guard had been summoned and advised him to calm down.

13. Everyone but Chief Rooney exited the room. The claimant returned and told Rooney that he was a 'punk.' He warned him that he was 'going to get [him.]' Additionally, he said, 'Your went to members of my family. You are a slum lord and I am going to get you!' before he left the room.

14. Prior to August 14, 2007, the employer had suspended the claimant for reasons, including acts of insubordination.

We have previously ruled that we will not retry a matter where the referee afforded the party a full and fair opportunity to present its case. See Lopez v. Southwick & Meister, Inc., Board Case No. 1211-BR-90 (11/26/90). Our independent review of the tape recording of the referee's hearing and documentary evidence in the record reveals that the claimant was offered a full and fair hearing. During the referee's direct examination of the claimant, the claimant testified that on the morning of August 14, 2007, he telephoned inspector Frank Lombardi's line and asked him to confirm whether a particular fire marshal had made a notation of his vacation request for the following day. The record does not reveal that the claimant requested that the referee contact Lombardi for testimony during this exchange, or at any other time during the hearing. Even if the claimant requested Lombardi's participation, whether his vacation request was granted or whether the fire marshal was at the employer's facility is not dispositive of whether the claimant engaged in conduct that constituted insubordination on August 14. We thus decline to offer him another opportunity to be heard at this stage in the proceedings.

We have previously ruled that whether displaying a poor attitude or making objectionable remarks to the employer constitutes wilful misconduct generally depends on whether the claimant's conduct is spontaneous or deliberate. Jones v. Safety-Kleen Corporation, Board Case No. 1075-BR-89 (11/30/89). In Jones, we set forth the factors to consider in determining whether an outburst towards one's supervisor constitutes insubordination. We consider whether the outburst occurred in the course of a heated discussion, whether the supervisor provoked the claimant, and whether there existed mitigating circumstances that would excuse the claimant's conduct. We also consider whether the claimant engaged in a pattern of similar conduct; whether the employer advised the claimant that this type of conduct could lead to further disciplinary action; whether the claimant directed the remarks or profanity at the supervisor as a personal insult or to threaten the supervisor; and whether the outburst occurs in the presence of coworkers such that it undermined the supervisor's authority.

The employer acted reasonably in following its usual practice of directing an employee to return to work following an arbitration meeting. Dunn and Rooney had reason to believe that the claimant's union business was completed at the conclusion of his own arbitration hearing, considering that the union's August 13, 2007 letter did not specifically advise the employer that the claimant would be involved in the second arbitration hearing. The claimant reacted to this reasonable directive with an angry and extended outburst, during which he personally insulted the fire chief. Additionally, he had misinterpreted the contract, which does not authorize a full day of absence merely because there was a half-day of scheduled meetings between the city and the union.

There were no mitigating circumstances to excuse the claimant's conduct during his heated exchange with Dunn. He repeatedly made statements to undermine Dunn's authority. He refused to calm down after the union president suggested that he do so. After he exited the hearing room, he returned to the room and continued making highly offensive remarks to the fire chief. The claimant had already been suspended on prior occasions for matters the employer advised him it considered insubordination. We thus conclude that the claimant's conduct after his arbitration hearing rose to the level of insubordination.

We find no merit to the claimant's assertion that the order to return to the workplace after his arbitration hearing did not extend to the conclusion of the second hearing. He was on notice that the employer wanted him to return to the workplace as soon as his permissible union business was completed. Furthermore, we agree with the referee that the claimant's failure to return to the workplace after the second hearing ended at 12:45 p.m., constitutes insubordination. In deciding whether the employer discharged or suspended a claimant for wilful misconduct, we must consider whether the employer's order was reasonable and whether the claimant's refusal to comply with the employer's order was justified. See Lahey v. Walgreen Eastern Co., Inc., Board Case No. 1093-BR-01 (11/15/01); see also Rakiec v. Mashantucket Pequot Gaming Enterprises, Board Case No. 757-BR-04 (9/7/04), aff'd Superior Court, judicial district of New Haven, Docket No. 4003891 (July 24, 2006).

The union contract permitted the claimant to participate in "all meetings between the city and the union for the purpose of processing grievances when such meetings are scheduled to take place at a time during which such members are scheduled on duty." Once the arbitration hearing ended at 12:45 p.m., there was no meeting scheduled between the city and the union. The time he used to discuss the case with the union president was not in the contract provision and it was not pre-scheduled for that time. Even if the claimant were entitled to a reasonable lunch break, he could have left for Bridgeport long before 2:30 p.m. We do not find that a lunch break extending almost two hours was reasonable even if he discussed union business during that time. The employer's directive to return to the workplace was reasonable. We find that the claimant's refusal to return after the second hearing ended was another instance of insubordination and thus conclude that the claimant was suspended for wilful misconduct in the course of him employment.

V. DISPOSITION AND ORDER

The referee's decision is affirmed, as modified, and the appeal is dismissed. The claimant is disqualified from receiving unemployment compensation benefits effective October 7, 2007.

BOARD OF REVIEW

_____________________________

Lynne M. Knox, Chair,

ES Board of Review

In this decision, Board Member Elizabeth S. Wagner concurs.

LMK:KHH:mle

IF YOU WISH TO APPEAL THIS DECISION, YOU MUST DO SO BY APRIL 28, 2008. SEE LAST PAGE FOR IMPORTANT INFORMATION REGARDING YOUR APPEAL RIGHTS.

COPIES OF THIS DECISION PROVIDED TO:

LAW OFFICES OF DALY, WEIHING & BOCHANIS

Attn: Attorney Thomas Weihing

1776 North Avenue

Bridgeport, CT 06604

BRIDGEPORT FIRE FIGHTERS LOCAL #384

Attn: Robert Whitbread, President

30 Congress Street

Bridgeport, CT 06604

CITY OF BRIDGEPORT

Labor Relations

Attn: David J. Dunn

45 Lyon Terrace, #330

Bridgeport, CT 06604