NEW YORK UNEMPLOYMENT INSURANCE - MISCONDUCT - FIGHTING ON THE JOB - PART 3

"A-750-1947

Index 1175-5

NEW YORK STATE DEPARTMENT OF LABOR
Unemployment Insurance Division
Adjudication Services Office

December 12, 1983

Interpretation Service - Benefit Claims
MISCONDUCT
Relations with Fellow Employees

FIGHTING ON THE JOB

Fighting on the job in violation of an employer rule is misconduct regardless of who initiates the fight, if the claimant has an opportunity to withdraw from the dispute but does not do so.

A.B. 339,308; A.B. 334,700

FINDINGS OF FACT: Claimant R.R., was employed as a security guard for approximately two years. Claimant J.M., was employed as a security guard for approximately three and one-half years. The claimants were scheduled to be on duty the evening of March 19, 1983 in the employer's museum. Prior to going on duty, R.R. spoke with his sergeant and conveyed misgivings about working with J.M. that night. As a result of this, the sergeant spoke to the claimants and informed them of the employer's rule against fighting. He told them that any violation of the rule would result in their discharge. Shortly thereafter, while in the dining room, the claimants became involved in a verbal discussion which resulted in yelling and harsh words being exchanged. The argument continued as they proceeded to the computer room. During the yelling and screaming in the computer room, each claimant spat at one another. This led to a physical altercation with both combatants throwing punches. As a result of this incident, the claimants were discharged effective May 19, 1982.

OPINION: The credible evidence now before the Board establishes that both claimants violated the employer's rule forbidding fighting on the premises, of which they were aware. Each significantly participated in the verbal argument and escalation thereof. It is significant that the altercation began in the dining room and continued down the hallway into the computer room. At any time, either claimant had the opportunity to discontinue the argument but chose not to do so. Under these circumstances, we reject each claimant's contention that he acted solely out of self-defense and we find that their actions constitute misconduct under the Law.

DECISION: The initial determination of the local office holding claimant R.R., eligible to receive benefits effective March 22, 1982 without any disqualifying conditions is overruled. The employer's objection is sustained. Claimant R.R. is disqualified from receiving benefits effective March 19, 1982 because he lost his employment through misconduct in connection therewith. No unemployment insurance benefits can be paid to claimant R.R. until he has subsequently worked for an employer not less than three days in each of four weeks or earned remuneration of at least $200. Self-employment and earnings therefrom will not count.

The decision of the administrative law judge filed August 12, 1962 (A.L.J. 82-90739) is reversed.

The initial determination of the local office disqualifying claimant J.M. from receiving benefits effective March 20" 1982, because he lost his employment through misconduct in connection therewith, is modified to be effective March 19, 1982, and as so modified, is sustained.

The decision of the administrative law judge filed April 27, 1982, (A.L.J. 82-10589) is reversed."

NEW YORK UNEMPLOYMENT INSURANCE - MISCONDUCT - FIGHTING ON THE JOB - PART 2

The position of the DOL appears to be set forth in the Interpretation Service - Benefit Claims - MISCONDUCT - Relations with Fellow Employees - A-750-1947:

COMMENTS

1. It is well established that a claimant who initiates a physical altercation with a co-worker, a supervisor or a customer in violation of an employer rule forbidding fighting, commits misconduct.
2. On occasion a claimant may be drawn into a fight involuntarily. Under such circumstances, the claimant has an obligation to withdraw from the fight at the first opportunity. The Appeal Board has previously held that it is immaterial who strikes the first blow if, once the fight commences, neither employee is willing to abandon it. (A.B. 319,018)
3. Escalating an argument is inappropriate behavior for the workplace. When a verbal dispute threatens to become physical" one means of avoiding physical confrontation is to seek assistance from a supervisor. Failure to do so, thus allowing a fight to ensue, is misconduct. (A.B. 345,987)
4. Not all physical fights allow a person to retreat. A claimant will not be subject to disqualification if (s)he fights solely out of self-defense. (A.B. 320,635) The claimant acts in self defense when (s)he
1. neither initiates nor provokes the physical altercation,
2. has no available retreat once it begins,
3. reasonably believes returning blows is necessary to avoid suffering additional, serious harm, and
4. responds to the attack with no more than the minimal degree of force necessary to disengage from the fight.

NEW YORK UNEMPLOYMENT INSURANCE - MISCONDUCT - FIGHTING ON THE JOB

Fighting with fellow employees can be verbal, can be physical, can be a mixture - and inevitably can lead to serious concerns with employers.

In this discussion, I am going to limit the instance where both employees are involved in a physical altercation. Thus, there is a general rule with the Department of Labor that "A fight with fellow employee in which claimant acted in self-defense did not constitute misconduct. (Ref. Dec. M11-7-38R; B-6-38; similarly A.B. 33,250-52)" However, there is a caveat: "Fighting on the job in violation of an employer rule is misconduct regardless of who initiates the fight, if the claimant has an opportunity to withdraw from the dispute but does not do so."