Collingsworth, In re

• Decision Date: 14 February 1973
• Docket Number: No. 7318SC15,7318SC15
• Citation: 194 S.E.2d 210,17 N.C.App. 340
• Parties: , 1971-1973 O.S.H.D. (CCH) P 15,627 In the Matter of Ballard C. COLLINGSWORTH, Appellee, and Cone Mills Corporation, Appellant, and Employment Security Commission of North Carolina, Appellant.
• Court: North Carolina Court of Appeals

Page 210

194 S.E.2d 210

17 N.C.App. 340, 1971-1973 O.S.H.D. (CCH) P 15,627

In the Matter of Ballard C. COLLINGSWORTH, Appellee and Cone Mills Corporation, Appellant and Employment Security Commission of North Carolina, Appellant.

No. 7318SC15.

Court of Appeals of North Carolina.

Feb. 14, 1973.

Eugene G. Shaw, Jr., Greensboro, for claimant appellee.

McLendon, Brim, Brooks, Pierce & Daniels by Thornton H. Brooks, H. J. Elam, III, and Charles P. Younce, Greensboro, for Cone Mills Corporation appellant.

Howard G. Doyle, H. D. Harrison, Jr., Garland D. Crenshaw and D. G. Ball, Raleigh, for Employment Security Commission of North Carolina appellant.

BRITT, Judge.

By their assignments of error appellants contend the superior court erred in concluding that claimant's discharge was not due to misconduct and reversing the decision of the Commission chairman.

The facts found by the Commission chairman are supported by competent evidence and therefore are binding upon review. In re Abernathy, 259 N.C. 190, 130 S.E.2d 292 (1963). Pursuant to G.S. § 95--15(b)(2)(i) the superior court adopted these facts but concluded that upon the facts found claimant's behavior did not constitute 'misconduct' within the meaning of G.S. § 96--14(2) which in pertinent part provides: 'An individual shall be disqualified for benefits . . . if it is determined by the Commission that such individual is, at the time such claim is filed, unemployed because he was discharged for misconduct connected with his work . . ..'

'Misconduct' is not defined within the statute and our research does not disclose a North Carolina decision defining the term in its industrial sense. In the case of In re Stutts, 245 N.C. 405, 95 S.E.2d 919 (1957), the Supreme Court affirmed a superior court ruling which in turn had affirmed the Commission's conclusion that a claimant who had willfully disobeyed an employer's rule that he (claimant) not make weight changes in the machine he operated was discharged for misconduct connected with his work. 'Misconduct' was not specifically defined in Stutts although presumably claimant's willful disobedience of his employer's rule amounted to misconduct.

Appellants contend that claimant's refusal to wear a protective ear device amounted to an intentional, willful violation of his employer's policy and interests and that such behavior must be termed 'misconduct' as used in the industrial sense. We agree.

In their briefs, which indicate thorough research, appellants point out that their research failed to disclose a decision which has ruled on a discharge resulting from employee refusal to comply with employer policy made mandatory by the Occupational Safety and Health Act of 1970 (pursuant to which Cone Mills instituted its ear protection policy).

Our research, likewise, fails to reveal such a decision from any jurisdiction but apparently jurisdictions which have considered what constitutes 'misconduct' sufficient to disqualify a discharged employee from receiving unemployment compensation '. . . sustain the rule that in order to constitute 'misconduct' . . . an act must show a wanton or wilful disregard for the employer's interests, a deliberate violation of the employer's rules, or a wrongful intent.' Sturges v. Administrator, Unemployment Comp. Act, 27 Conn.Sup. 215, 234 A.2d 372 (1966); Abex Corp. v. Todd, 235 A.2d 271 (Del.Super.1967); Earp v. Florida Department of Commerce et al., 241 So.2d 422 (Fla.App.1970); Oliver v. Creamer Heating & Appliance, 91 Idaho 312, 420 P.2d 795 (1966); American Steel Foundries, Inc. v. Review Bd. of Ind. E.S.D., 143 Ind.App. 12, 237 N.E.2d 263 (1968); Hall v. Doyal, 191 So.2d 349 (La.App.1966); Fresta v. Miller, 7 Mich.App. 58, 151 N.W.2d 181 (1967); Barnum v. Williams, 84 Nev. 37, 436 P.2d 219 (1968); Claim of Heitzenrater, 19 N.Y.2d 1, 277 N.Y.S.2d 633, 224 N.E.2d 72 (1966); Harp v. Administrator, Bureau of Unemployment Comp., 12 Ohio Misc. 34, 230 N.E.2d 376 (1967); Troutt v. Carl K. Wilson Company, 219 Tenn. 400, 410 S.W.2d 177 (1966); Fitzgerald v. Globe-Union, Inc., 35 Wis.2d 332, 151 N.W.2d 136 (1967). Annot., 146 A.L.R. 243 (1943).

Many cases have held or recognized that where an employee was discharged for disobeying 'a reasonable directive' of his superior such behavior amounted to 'insubordinate disobedience' or cmisconduct' sufficient to prohibit an award of unemployment compensation. Sayers v. American Janitorial Service, Inc., 162 Colo. 292, 425 P.2d 693 (1967); Rankin v. Doyal, 223 So.2d 214 (La.App.1969); Carter v. Michigan Employment Security Comm., 364 Mich. 538, 111 N.W.2d 817 (1961); Simonetta v. Catherwood, 30 A.D.2d 1008, 294 N.Y.S.2d 130 (1968); ...