Home FRANK SHARON vs. DIRECTOR OF THE DIVISION OF EMPLOYMENT SECURITY & another. [Note 1]

390 Mass. 376

October 3, 1983 - November 9, 1983

Norfolk County

Present: HENNESSEY, C.J., WILKINS, NOLAN, LYNCH, & O'CONNOR, JJ.

The board of review of the Division of Employment Security was warranted in denying unemployment benefits to a claimant who was discharged for refusing to make a public apology to a vice president of the employer to whom the claimant had addressed crude, derogatory remarks in the presence of other employees. [377-378]

CIVIL ACTION commenced in the East Norfolk Division of the District Court Department on May 28, 1982.

The case was heard by Whitman, J.

Lawrence L. Blacker for the employer.


NOLAN, J. The employee, Frank Sharon, sought unemployment benefits following his discharge by his employer, Apahouser Lock and Security Corporation (employer). He was at first denied benefits. After a hearing, a review examiner awarded him benefits finding that his termination had not been "attributable solely to deliberate misconduct in wilful disregard of the employing unit's interest." G. L. c. 151A, Section 25 (e) (2). The board of review (board) reversed the review examiner's decision. Upon judicial review, a judge of the District Court Department reversed the board's decision, concluding, as a matter of law, that the facts did not support the board's decision.

Sharon's termination resulted from his confrontation with the employer's vice president concerning use of a company car for an assignment in Connecticut. [Note 2] At the conclusion

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of a heated discussion on this matter, Sharon called the vice president a liar and a crude, derogatory name in the presence of several managerial employees. The vice president demanded that he publicly apologize and informed Sharon that failure to do so would result in termination. Sharon refused to do so and was terminated.

Although the review examiner found that Sharon deliberately refused to make a public apology, he awarded Sharon benefits because he found that the employer's demand for a public apology was unreasonable. The board reversed, concluding that the demand for a public apology was reasonable because Sharon had made the derogatory remarks in the presence of several employees. In reversing the board's decision, the judge of a District Court found no indication in the evidence that the employer's interest would be benefitted by an employee's publicly humiliating himself.

We conclude that the board did not commit an error of law and that the evidence does indicate that the employer's interest would be benefitted by a public apology. The issue in this case involves the application of the standard in G. L. c. 151A, Section 25 (e) (2), to the facts. Application of law to fact is a function specifically committed to the board. Garfield v. Director of the Div. of Employment Sec., 377 Mass. 94 , 96 (1979). This is an exercise of the board's judgment which calls upon its experience, technical competence, and specialized knowledge. Director of the Div. of Employment Sec. v. Fingerman, 378 Mass. 461 , 463 (1979).

The apparent purpose of Section 25 (e) (2) "is to deny benefits to a claimant who has brought about his own unemployment through intentional disregard of standards of behavior which his employer has a right to expect." Garfield v. Director of the Div. of Employment Sec., supra at 97. We uphold the board's conclusion that an employer has a right to expect a public apology when insulting remarks, directed

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at a company vice president, are made in the presence of other personnel. Unlike Torres v. Director of the Div. of Employment Sec., 387 Mass. 776 , 779 (1982), this case does not require any specific finding as to Sharon's state of mind because the review examiner found that his misconduct consisted of deliberately refusing to make a public apology. This refusal was obviously intentional.

The judgment of the District Court Department is reversed. Judgment is to be entered in that court affirming the decision of the board of review.

So ordered.


FOOTNOTES

[Note 1] Apahouser Lock and Security Corporation.

[Note 2] Because the board did not conduct an evidentiary hearing, the facts found by the review examiner are conclusive if supported by substantial evidence. G. L. c. 151A, Section 41. See Director of the Div. of Employment Sec. v. Fingerman, 378 Mass. 461 , 463 (1979).