Alcan Rolled Prods. Ravenswood, LLC v. McCarthy

• Decision Date: 23 October 2014
• Docket Number: No. 13–1080.,13–1080.
• Citation: 234 W.Va. 312,765 S.E.2d 201
• Court: West Virginia Supreme Court
• Parties: ALCAN ROLLED PRODUCTS RAVENSWOOD, LLC, Respondent Below, Petitioner v. Terry W. McCARTHY, Petitioner Below, Respondent.

234 W.Va. 312

765 S.E.2d 201

ALCAN ROLLED PRODUCTS RAVENSWOOD, LLC, Respondent Below, Petitioner

v.Terry W. McCARTHY, Petitioner Below, Respondent.

No. 13–1080.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 16, 2014.

Decided Oct. 23, 2014.

Ancil G. Ramey, Esq., Nora Clevenger Price, Esq., Steptoe & Johnson PLLC, Huntington, WV, for Petitioner.

Thomas P. Maroney, Esq., Patrick K. Maroney, Esq., Maroney, Williams, Weaver & Pancake, PLLC, Charleston, WV, for Respondent.

Opinion

LOUGHRY, Justice:

The petitioner, Alcan Rolled Products Ravenswood, LLC (“Alcan”),¹ appeals the Circuit Court of Kanawha County's order entered September 10, 2013, reversing the decision of Workforce West Virginia's Board of Review (“Board”). The Board affirmed the decision of a Workforce West Virginia administrative law judge (“ALJ”), who denied unemployment benefits to Alcan's former employee, the respondent, Terry McCarthy (“Mr. McCarthy”), upon finding he had been discharged for gross misconduct. Concluding that the findings of fact of the ALJ, as adopted by the Board, were clearly wrong, the circuit court entered an order reversing the decision of Workforce West Virginia and ruling that Mr. McCarthy was entitled to unemployment compensation benefits. Alcan challenges the circuit court's order, asserting that the court failed to give proper deference to the findings of fact of the ALJ; substituted its findings of fact for those of the ALJ and the Board; and erred by ruling that Mr. McCarthy's actions did not constitute “gross misconduct.” Upon our careful consideration of the record in this matter, the briefs and arguments of the parties, the applicable legal authority, the appropriate standard of review, and for the reasons discussed below, we reverse the circuit court's final order and remand this action to the circuit court with directions to reinstate the Workforce West Virginia decision finding Mr. McCarthy ineligible for unemployment compensation benefits.

I. Factual and Procedural Background

On or about October 5, 2012, Mr. McCarthy² was discharged from employment with Alcan for picket line violence. The misconduct occurred on August 7, 2012, during a labor strike by Alcan's hourly workforce. Supervisory employees traveling in a four-vehicle convoy observed Mr. McCarthy throwing a “jack rock”³ from a picket line into their lane of travel at the south “Y” intersection leading to Alcan's facility in Ravenswood, West Virginia.

Following his termination, Mr. McCarthy filed a claim for unemployment compensation benefits with the Division of Unemployment Compensation of Workforce West Virginia. He was denied benefits at all three levels of the administrative process based on the recurrent finding that Mr. McCarthy's actions, which led to his discharge from employment with Alcan, constituted gross misconduct.

On October 25, 2012, the Workforce West Virginia deputy entered his decision finding that Mr. McCarthy was disqualified from receiving benefits.⁴ The deputy based his decision upon Alcan's evidence that Mr. McCarthy threw a jack rock at an employee's vehicle, which the deputy found was gross misconduct. Mr. McCarthy requested an appeal of the deputy's decision, and an evidentiary hearing was held before the ALJ on December 21, 2012.⁵

During this evidentiary hearing, Mr. McCarthy testified that he did not throw the jack rock and that while he heard and saw jack rocks hit the road that morning, he did not see who threw them. Mr. McCarthy presented the testimony of a co-worker, Ed Nunn, who testified that he was with Mr. McCarthy on the picket line “most of the time;” that he did not see Mr. McCarthy throw a jack rock; and that he saw “a jack rock or two” in the roadway that day, but did not know who threw them. Mr. McCarthy also called Luke Staskal as a witness. Mr. Staskal, Alcan's Human Resource Business Partner, testified and confirmed that videos were taken of jack rocks in the roadway that day by the security company employed by Alcan, but that he did not know where those videos were located. The transcript of this evidentiary hearing reflects that Mr. Staskal was never asked whether there were videos showing the specific incident involving Mr. McCarthy.

During this same evidentiary hearing, Alcan presented the testimony of several witnesses, including Tom Slone, Alcan's Manager of Environmental Health Services and Security, who investigated the incident. Mr. Slone explained that the Alcan management personnel immediately reported the incident involving Mr. McCarthy upon arriving at the Alcan plant the morning of August 7, 2012. While there were several incidents of picket line violence reported that day, Mr. Slone testified that he was personally charged with documenting this particular incident the morning it occurred. Mr. Slone authenticated his incident report, which contained his summary of the incident as described by William (Rocky) Elkins, the management employee who was driving the first vehicle in the convoy: “Turned off Rt. 2 onto the north branch of the South Y (access) to Century Road [and] observed [Mr.] McCarthy throw an object toward his vehicle, believed to be a jack rock.” Mr. Slone explained that his incident report also contained signed statements from David Johnson and Jeff Wamsley, management employees who occupied the second vehicle in the convoy that morning. Mr. Wamsley's signed statement reflects that he “observed [Mr.] McCarthy toss a jack rock at Rocky's [Elkins's] back tire. I saw the jack rock bounce toward the back tire. There is no question that this was a jack rock.”⁶ Similarly, Mr. Johnson's signed statement indicates that he “witnessed [Mr.] McCarthy toss a jack rock at Rocky's [Elkins's] vehicle. I confirm that this was a jack rock.” Mr. Slone's incident report, as well as Alcan's Rules of Conduct⁷ for the facility, were admitted into evidence by the ALJ.

In addition to their written statements, Mr. Elkins and Mr. Johnson were called as witnesses by Alcan during the administrative hearing. Mr. Elkins testified that he was driving the lead vehicle in the four-vehicle convoy carrying management employees to the Alcan plant for the first time since the labor strike began. He explained that as he was driving past the picket line, he saw Mr. McCarthy, whom he recognized from work, “stoop[ ] down and ma[k]e a ... bowling motion with his arm[,]” although he did not see anything come out of Mr. McCarthy's hand. Mr. Elkins also testified that once Mr. Johnson and Mr. Wamsley arrived at the plant, he told them that Mr. McCarthy was “messing” with him by making the tossing motion at which time Mr. Johnson and Mr. Wamsley told him that Mr. McCarthy was not “acting” but had actually tossed a jack rock into the roadway.

During Mr. Johnson's testimony, he confirmed his written statement contained in the incident report, which he explained was given to Mr. Slone within thirty minutes of arriving at the plant that day. According to Mr. Johnson, he was a passenger in the vehicle being driven by Mr. Wamsley and, as the vehicle slowed to make the sharp curve at the Y intersection, he saw Mr. McCarthy toss a jack rock into the roadway from the picket line. Mr. Johnson testified that the jack rock bounced on the road between the Elkins and Wamsley vehicles and that Mr. Wamsley “swerved over” to navigate around the jack rock.⁸ When asked how many other strikers were standing with Mr. McCarthy on the picket line that morning, Mr. Johnson responded, “five to six.”⁹

On January 13, 2013, the ALJ entered his decision affirming the deputy's decision and finding that Mr. McCarthy had been discharged by Alcan for gross misconduct, which disqualified him from receiving unemployment compensation benefits. The ALJ found, inter alia, as follows:

4. There was a strike at the employer premises beginning August 5, 2012, due to a labor dispute.

5. On August 7, 2012, the claimant was manning the picket line at the South Y Entrance. The claimant [Mr. McCarthy] threw a jack rock beneath and toward a vehicle entering the employer facility.

6. There were four vehicles in a convoy transporting supervisor personnel to work at the plant during the strike. The claimant [Mr. McCarthy] threw a jack rock into the roadway as the first vehicle drove pass [sic] the South Y Intersection. The driver of the second vehicle swerved to avoid the jack rock in the roadway. The passenger in the second vehicle observed the claimant throw the jack rock into the roadway as the first car traveled past the claimant [Mr. McCarthy].

Based upon these factual findings, the ALJ concluded that Mr. McCarthy's attempt to damage property was work related as he was “attempting to discourage supervisors from traveling to work during the strike.” The ALJ further found that Mr. McCarthy's attempt to damage property was in violation of the employer's policy and was a “deliberate disregard of the employer's interest and constitutes gross misconduct.”

Mr. McCarthy appealed the ALJ's decision to the Board, which held a hearing on March 20, 2013.¹⁰ In its decision dated May 23, 2013, the Board adopted the ALJ's findings of fact in their entirety and affirmed the ALJ's decision that Mr. McCarthy was discharged for an act of gross misconduct disqualifying him from unemployment benefits. Thereafter, Mr. McCarthy appealed the Board's decision to the Circuit Court of Kanawha County.

On September 20, 2013, the circuit court, having reviewed the administrative record from Workforce West Virginia, as well as the parties' respective memoranda of law, entered an order expressing its opinion that the ALJ's findings of fact, as adopted by the Board, were clearly wrong in view of the evidence on the whole record. The circuit court found that Mr. Elkins, the driver of the first vehicle, did not observe anything come out of Mr. McCarthy's hand as he made a tossing motion; that Mr. Johnson's testimony conflicted with that of Mr. Elkins, who was in a better position to observe Mr. McCarthy; and...