Opinion
Docket No. 107130.
Decided March 21, 1989.
George J. Brannick and James E. Dudus, for claimant.
Dykema, Gossett (by Richard N. LaFlamme and Anne E. Campau), for Aeroquip Corporation.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, and Mark F. Davidson, Assistant Attorney General, for Michigan Employment Security Commission.
Plaintiff appeals from a decision of the circuit court which affirmed defendant MESC'S Board of Review reversal of an MESC referee's decision awarding plaintiff unemployment compensation benefits. We affirm.
Plaintiff was discharged from his employment with defendant Aeroquip Corporation after an incident with his supervisor in which plaintiff became verbally abusive towards the supervisor, calling him "asshole" and "prick." Plaintiff filed for unemployment compensation benefits, which were initially denied on the basis that plaintiff's use of abusive and insulting language towards the supervisor constituted wanton and wilful disregard of the employer's interest. The hearing referee concluded that claimant did not commit wilful and wanton misconduct under § 29 of the MESC act, and, therefore, awarded unemployment benefits to plaintiff. The MESC Board of Review reversed the referee's decision and denied benefits. The Board of Review's decision was affirmed by the circuit court and plaintiff now appeals to this Court.
MCL 421.29(1)(b); MSA 17.531(1)(b).
We begin by noting the standard of review to be applied in this case. This Court, in Washington v Amway Grand Plaza, 135 Mich. App. 652, 656-657; 354 N.W.2d 299 (1984), reiterated the standard of review:
The applicable standard of review was stated in Chrysler Corp v Sellers, 105 Mich. App. 715, 720; 307 N.W.2d 708 (1981):
"On appeal from decisions of the Board of Review, we may review questions of law or fact, Const 1963, art 6, § 28, MCL 421.38; MSA 17.540, but we can reverse only if the order or decision is contrary to law or is unsupported by competent, material and substantial evidence on the record. If there is no dispute as to underlying facts, questions presented on appeal are to be treated as matters of law. Laya v Cebar Construction Co, 101 Mich. App. 26, 29; 300 N.W.2d 439 (1980)."
The scope of appellate review clearly includes the soundness of the board of review's interpretation of misconduct. See Helzer v Metzgar Conveyor Co, 89 Mich. App. 695, 700; 282 N.W.2d 187 (1979), dissenting opinion of Judge (now Justice) CAVANAGH.
The definition for "misconduct" was also stated by the Court in Washington, supra at 657:
In Carter v Employment Security Comm, 364 Mich. 538, 541; 111 N.W.2d 817 (1961), the Court adopted the classic definition of misconduct, quoting Boynton Cab Co v Neubeck, 237 Wis. 249, 259-260; 296 N.W. 636 (1941):
"`The term "misconduct" . . . is limited to conduct evincing such wilful or wanton disregard of an employer's interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer's interests or of the employee's duties and obligations to his employer. On the other hand mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good-faith errors in judgment or discretion are not to be deemed "misconduct" within the meaning of the statute.'"
Turning to the issue at hand, whether the use of vulgar or abusive language towards a supervisor constitutes misconduct, there appears to be no cases directly on point in Michigan. The issue has been considered in our sister states, however, which have, by and large, upheld the denial of unemployment compensation benefits based upon the claimant's use of vulgar and abusive language, concluding that such actions constituted misconduct. See Zeches v Iowa Dep't of Job Service, 333 N.W.2d 735 (Iowa App, 1983); Chapman v Office of Employment Security, Baton Rouge, 413 So.2d 581 (La App, 1982); Acord v Labor Industrial Relations Comm, 607 S.W.2d 174 (Mo App, 1980). But see Christianson v Geo A Hormel Co, 404 N.W.2d 334 (Minn App, 1987).
In looking at the use of vulgar or abusive language, we conclude that the use of such language can constitute employee misconduct. Certainly such conduct is wilful and deliberate since the employee can choose which words to use and, we believe, it violates the standards of behavior that an employer can reasonably expect from his employees. That is, we believe an employer has the right to expect his employees to act with a certain amount of civility towards management personnel and, for that matter, fellow employees. Of course, every use of a vulgar epithet does not necessarily constitute misconduct. Rather, the totality of the circumstances of the case must be considered in determining if the use of vulgar or abusive language constitutes misconduct. Thus, we must look to the words used and the context in which the words are spoken in determining whether an employee has engaged in misconduct. In looking at the totality of the circumstances, various considerations should be taken into account. Whether the use of vulgar or abusive language constitutes misconduct depends upon a variety of factors, including considerations such as whether the words were directed at a fellow employee, a supervisor, or a customer, whether the tone and context suggests an abusive intent or friendly badgering, whether the comments were made in a private conversation or in the presence of others, and whether such conduct has been condoned in the past.
Turning to the case at bar, while we are not prepared to say that plaintiff's conduct as a matter of law constitutes misconduct, neither are we prepared to say that his conduct does not as a matter of law constitute misconduct. Rather, we believe that plaintiff's use of vulgar language directed at his supervisor in a hostile confrontation is sufficiently supported by the record to allow the MESC to determine that plaintiff engaged in misconduct. That is, while we are not convinced that the MESC would have erred by ruling in plaintiff's favor, neither are we convinced that the MESC erred in ruling against plaintiff. Given the standard of review employed in unemployment compensation cases, we believe that this is the appropriate case to defer to the judgment of the MESC. Accordingly, we affirm the circuit court's affirmance of the decision of the MESC Board of Review denying benefits to plaintiff.
Affirmed. Defendants may tax costs.