Appeal from the Order of the Unemployment Compensation Board of Review in the case of In Re: Claim of Willie Reed, No. B-238007.
Mary K. Hanna, for petitioner.
Samuel H. Lewis, Associate Counsel, with him, Paul E. Baker, Acting Deputy Chief Counsel, for respondent.
President Judge Crumlish, Jr., Judge Colins, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge Colins.
[ 104 Pa. Commw. Page 374]
Willie Reed (claimant) appeals an order of the Unemployment Compensation Board of Review (Board) which affirmed the referee's decision finding him ineligible for unemployment compensation on account of willful misconduct pursuant to Section 402(e) of the Unemployment Compensation Law (Law),*fn1 and assessing a
[ 104 Pa. Commw. Page 375]
non-fault overpayment under Section 804(b)(1) of the Law, 43 P.S. § 874(b)(1).
Claimant was employed by Progress Lighting Company (employer) as a polisher when he was discharged for fighting on company property. He received unemployment compensation for a period of seven weeks until the Office of Employment Security (OES) determined that claimant had been discharged for fault and that his receipt of compensation was improper. OES assessed a fault overpayment and ordered recoupment of compensation pursuant to Section 804(a) of the Law, 43 P.S. § 874(a). Claimant appealed this decision and the case proceeded to a hearing before a referee. In a subsequent decision, the referee affirmed the OES' determination of ineligibility, but held that any overpayment of compensation had been occasioned without fault on the part of the claimant. The Board affirmed and claimant's appeal to this Court followed.
Upon appeal, claimant contends that: (1) the Board's determination of willful misconduct is not supported by the record because the Board did not consider claimant's contention that his actions were provoked by conduct of his supervisor; (2) the referee, and the Board, upon affirmance, failed to resolve issues of credibility because they did not address claimant's allegations of provocation; and (3) the claimant was not afforded a fair hearing because the referee "failed to give claimant every assistance compatible with the impartial discharge of his official duties."
The burden of proving willful misconduct is, of course, on the employer. BMY, a Division of Harsco Corp. v. Unemployment Compensation Board of Review, 94 Pa. Commonwealth Ct. 579, 504 A.2d 946 (1986). The employer here contends that it discharged claimant following his utterance of vulgar and offensive language coupled with the threat of physical violence
[ 104 Pa. Commw. Page 376]
directed at his supervisor.*fn2 Indeed, the employer presented several witnesses, including the supervisor, who testified that they heard the claimant utter these remarks in response to the supervisor's directive that employees should remain at their work stations. The claimant submits that any offensive language on his part was a response to provocation by his supervisor. He testified that the supervisor approached him following his directive and "brought up his fist and lowered his eyes" as if threatening to strike him. Claimant testified that he responded to this conduct ...