| BOARD OF APPEALS
DECISION
DECISION NO: 1476-BH-92
DATE: August 27, 1992 |
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| CLAIMANT: Michael L. Edmonds |
APPEAL NO.: 9122774 |
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EMPLOYER: Anne Arundel Co. Gov't.
c/o The Gibbens Company |
L.O. NO: 8 |
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APPELLANT: Employer |
Issue: Whether the claimant was discharged for gross misconduct
or misconduct, connected with the work within the meaning
of Section 8-1002 or 8-1003 of the Labor and Employment Article.
- NOTICE OF RIGHT OF APPEAL TO COURT -
YOU MAY FILE AN APPEAL FROM THIS DECISION IN ACCORDANCE WITH
THE LAWS OF MARYLAND. THE APPEAL MAY BE TAKEN IN PERSON
OR THROUGH AN ATTORNEY IN THE CIRCUIT COURT OF BALTIMORE
CITY, IF YOU RESIDE IN BALTIMORE CITY, OR THE CIRCUIT
COURT OF THE COUNTY IN MARYLAND IN WHICH YOU RESIDE.
THE PERIOD FOR FILING AN APPEAL EXPIRES September 26, 1992.
APPEARANCES
For the Claimant:
Michael Edmonds - Claimant |
For the Employer:
Marty Young - Gibbens Company
Lee Currier - Supervisor
Mike Roe - Supervisor
Lloyd Barron Foreman
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EVALUATION OF THE EVIDENCE
The Board
of Appeals has considered all of the evidence presented,
including the testimony offered at the hearings. The Board
has also considered all of the documentary evidence introduced
in this case, as well as the Department of Economic and
Employment Development's documents in the appeal file.
The Board found that the claimant's testimony was completely
without credibility.
FINDINGS OF FACT
The claimant was employed for sixteen years for the Anne Arundel
County Government as a heavy duty equipment operator.
He was discharged on October 31, 1991.
The claimant had been considered a problem employee. In 1989,
he used all of his excused unscheduled absences, then
took an unapproved unscheduled absence on June 28. In
a meeting to discuss this, he became disruptive. He was
warned for this on June 30, 1989.
On July 10 of that year, the claimant was given an oral warning
about his job performance and his abuse of leave. He was
given another warning for the same offenses on July 25,
1989. The claimant was counseled both formally and informally
at this time to take advantage of the employer's employee
assistance program for those with personal problems, but
the claimant insisted that he had no such problems.
On August 14, 1990, the claimant disobeyed a direct order
of his supervisor. The claimant, having been refused permission
by the supervisor to leave the work site, nevertheless
left the work site and drove a distance away to a credit
union. He was again warned.
On August 3, 1991, the claimant left the work site and drove
to a nearby street in his backhoe. He left the backhoe
running in the middle of the street while he went inside
and visited with a friend of his. He was warned that this
conduct was inappropriate.
On July 12, 1991, the claimant was arrested for possession of cocaine.
On October 18, 1991, the claimant drove his truck miles out
of the way and away from his work site. He was supposed
to be in Glen Burnie, but he left the area and drove to
Brooklyn. This was an area near where he had previously
parked the backhoe. This time, the claimant was driving
a dump truck. Due to his own negligence, he go into an
accident with the dump truck. On October 22, 1991, the
claimant was suspended for the accident.
On October 29, 1991, the claimant entered a guilty plea to
the charge of possession of cocaine.
On October 31, 1991, the claimant was discharged. On December
23, 1991, the claimant's guilty plea was changed to a
judgment of Probation Before Judgment.
The employer's drug policy prohibits the possession or use
of controlled dangerous substances while on the work site,
during work hours, or on the employer's property. It also
requires that an employee who is convicted of a drug violation
which took place on the work site must report this to
the employer. It also prohibits drug offenses off the
work site if they result in convictions which are "unbecoming"
an employee of the county.
CONCLUSIONS OF LAW
The drug charges cannot be considered as part of the unemployment
insurance case against the claimant. A judgment of Probation
Before Verdict cannot be used against the claimant in
a subsequent civil proceeding. Tate v. Board of Education
of Kent County, 485 A.2d 688 (1985). Myers v. State, 303
Md. 639 496 A.2d 312 (1985).
Since the drug charges cannot be considered, the Board does
not have to reach the issue of whether a conviction for
a drug offense occurring off the work site would violate
the employer's policy. The Board notes that it does not
appear that the claimant had any duty under the employer's
policy to report his conviction to the employer.
Since the drug charges cannot be considered, a question arises
as to why the claimant was discharged. The employer testified,
and the Board believes, that the claimant was discharged
for his entire record of conduct. When an employer discharges
a claimant for a series of events, but where one or more
of those events is not proven (or cannot be considered)
in the unemployment insurance hearing, a question arises
as to whether a penalty can be imposed on a claimant for
a series of proven actions which are gross misconduct
but which, might not, in and of themselves, have actually
prompted the employer to terminate him.
The Board now rules that, where an employer discharges a claimant
for a variety of actions alleged to constitute misconduct,
but where some of these actions were not proven, or cannot
be considered as misconduct, the remaining actions should
be considered, and, if they amount to misconduct, the
claimant should be found to be discharged for misconduct.
In this case, the proven events include a long period of
substandard conduct in 1989, a deliberate flouting of
a supervisor's direct order in August of 1990, the abandonment
of his work site and the leaving of his backhoe running
in a public street in April of 1991, and an abandoning
of his work site coupled with a negligent operation of
his employer's equipment at an unauthorized site on October 18, 1991.
The last incident in itself was a deliberate violation of
standards the employer has a right to expect, showing
a gross indifference to the employer's interest. This
is gross misconduct within the meaning of Section 8-1002
of the Law. The same reasoning applies to the backhoe
incident of April of 1991 and the incident of disobeying
the superior's direct orders on August 14, 1990. The Board
does not have to reach the issue of whether the claimant's
total conduct amounts to a series of repeated violations
of work rules, since the claimant's actions meet the test
for deliberate actions in Section 8-1002(a)(l)(i).
DECISION
The claimant was discharged for gross misconduct connected
with the work, within the meaning of Section 8-1002 of
the Labor and Employment Article. He is disqualified from
receiving benefits from the week beginning November 3,
1991 and until he becomes reemployed, earns at least ten
times his weekly benefit amount ($2,230.00) and thereafter
becomes unemployed through no fault of his own.
The decision of the Hearing Examiner is reversed.
Thomas W. Keech, Chairman
Donna P. Watts, Associate Member
Hazel A. Warnick, Associate Member
kmb
DATE OF HEARING: July 28, 1992
COPIES MAILED TO:
CLAIMANT
EMPLOYER
UNEMPLOYMENT INSURANCE - ANNAPOLIS
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