Lewis v. Director of Division of Employment Sec.
| Decision Date | 11 February 1980 |
| Citation | 400 N.E.2d 264,379 Mass. 918 |
| Parties | Rosalie LEWIS v. DIRECTOR OF the DIVISION OF EMPLOYMENT SECURITY et al. 1 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Robert M. Schwartz, Boston, for plaintiff.
William D. Luzier, Jr., Asst. Atty. Gen., for the Director of the Division of Employment Security.
David B. Ellis, Kenneth T. Lopatka, and Dinah Seiver, Foley, Hoag & Eliot, Boston, for General Dynamics Corp., submitted a brief.
Thomas G. Waldstein, Ashland, for International Union, United Auto., Aerospace & Agr. Implement Workers of America, amicus curiae, submitted a brief.
Before HENNESSEY, C. J., and QUIRICO, WILKINS, LIACOS and ABRAMS, JJ. RESCRIPT.
The plaintiff was denied unemployment benefits because the board of review of the Division of Employment Security determined that her discharge was "for deliberate misconduct in wilful disregard of the employing unit's interest." G.L. c. 151A, § 25(e)(2).
The review examiner, whose decision was adopted by the board as its decision, found that on May 19, 1977, the plaintiff created "a loud disturbance" when she proceeded to enter her employer's premises (General Dynamics) wearing a jacket on which the words "Strike G.D." had been printed. A guard objected to the plaintiff's entering the premises wearing the jacket because he had been instructed on May 18, 1977, to prevent another employee from entering the premises wearing the same jacket. The plaintiff refused to follow the guard's instructions and wore the jacket for about fifteen minutes in the employer's premises before changing into working gear. The review examiner found that the plaintiff was discharged because (1) she wore an "unauthorized jacket advocating a strike on the employer's premises during the process of collective bargaining negotiations," (2) she violated enforced company rules and regulations, and (3) she created a loud disturbance. The review examiner ordered benefits to be denied, and the board of review by a two-to-one vote, affirmed the decision of the review examiner. The plaintiff appealed to the District Court. A District Court judge affirmed the board of review's decision and reported the case to this court. G.L. c. 151A, § 42.
In her appeal the plaintiff alleges that her conduct was protected by the National Labor Relations Act; that her conduct did not violate the collective bargaining agreement; and that the finding that the plaintiff created a disturbance was not based on substantial evidence. Subsequent to the entry of the plaintiff's appeal, an N.L.R.B. arbitrator selected by the parties to arbitrate an unfair labor practice charge filed by the plaintiff against General Dynamics found against the plaintiff on the first two issues raised by the plaintiff. An N.L.R.B. regional director deferred to this arbitrator's award, and the N.L.R.B. general counsel denied the plaintiff's appeal from this regional decision. At oral argument, the defendants argued a motion to include the arbitration report, and subsequent N.L.R.B. decisions in the record before this court. The plaintiff opposed the motion. Since the plaintiff and her employer were parties in those proceedings, we allow the motion. We conclude that the arbitration decision based on federal law...
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Torres v. Director of Div. of Employment Sec.
...credibility of the testimony are matters for the hearing officer's determination and not for ours, Lewis v. Director of the Div. of Employment Sec., 379 Mass. 918, 919, 400 N.E.2d 264 (1980), a review examiner may not, as he did here, facilely impute "wilful disregard" of the employer's int......