IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Armstrong World Industries,                   :
                 Petitioner                   :
                                              :   No. 1724 C.D. 2015
              v.                              :
                                              :   Submitted: April 8, 2016
Unemployment Compensation                     :
Board of Review,                              :
                 Respondent                   :


BEFORE:       HONORABLE MARY HANNAH LEAVITT, President Judge
              HONORABLE PATRICIA A. McCULLOUGH, Judge
              HONORABLE DAN PELLEGRINI, Senior Judge



OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE McCULLOUGH                                        FILED: September 15, 2016


              Armstrong World Industries (Employer) petitions for review of the
September 4, 2015 order of the Unemployment Compensation Board of Review
(Board), which reversed a referee’s decision holding that Albert Miller (Claimant) is
ineligible for unemployment compensation benefits pursuant to section 402(e) of the
Unemployment Compensation Law (Law).1
              Employer employed Claimant as a full-time shift electrician from
November 6, 2002, to January 25, 2015. (Board’s Finding of Fact No. 1.) Employer

       1
          Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§802(e). Section 402(e) of the Law provides that an employee shall be ineligible for benefits for
any week in which his unemployment is due to his discharge from work for willful misconduct
connected with his work.
maintains a Workplace Violence Policy (the Policy) which prohibits an employee
from committing or threatening to commit “any act of violence . . . while at the
company.” (Board’s Finding of Fact No. 2.) The Policy defines “violence” as “any
threats, threatening behavior or acts of violence conducted against an employee . . . .”
(Board’s Finding of Fact No. 3.) Claimant was aware of or should have been aware
of Employer’s policy. (Board’s Finding of Fact No. 5.)
             Claimant and another co-worker, Mark Kauffman (Kauffman) were
competitors for overtime and Claimant had previously questioned the distribution of
overtime between himself and Kauffman. On January 25, 2015, as Claimant was
leaving the locker room at the end of his shift, Kauffman was entering the locker
room. As Claimant and Kauffman were passing each other, Kauffman leaned into
Claimant and the two bumped shoulders. As Claimant neared the exit of the locker
room, Kauffman began yelling that Claimant had deliberately bumped into him.
Claimant stopped and turned around to find Kauffman aggressively approaching him,
at which time Claimant tried to push Kauffman away.            Claimant subsequently
grabbed Kauffman, wrestled him to the floor, and applied a headlock, but he never
struck Kauffman. (Board’s Findings of Fact Nos. 6-14.)
             Kauffman broke free from Claimant, got up off the floor, and appeared
to be enraged. Kauffman proceeded to bang his own head against the wall, accusing
Claimant of hitting him and stating that he was calling the police. Kauffman then
walked out of the locker room. Shortly thereafter, Claimant walked out of the locker
room and Kauffman again charged at him. Claimant again tried to wrestle Kauffman
to the ground, but he was unsuccessful and slipped and fell to one knee. At that
point, Kauffman kicked Claimant in the face under his chin. Kauffman then left,
again stating that Claimant hit him and he was calling the police.           Kauffman



                                           2
thereafter complained to Employer, which initiated an investigation of the incident.
Following this investigation, Employer discharged both Claimant and Kauffman for
fighting on the job. (Board’s Findings of Fact Nos. 15-25.)
             Claimant applied for unemployment compensation benefits with his
local service center. The local service center determined that Claimant was not
ineligible for benefits under section 402(e) of the Law because he was acting in self-
defense, and, therefore, he had good cause for his actions. Employer appealed and a
referee held a hearing on March 18, 2015.
             Terry Miles (Miles), Employer’s Maintenance Supervisor, testified that
he was first told about the incident by Kauffman, after which he conducted interviews
with both parties. Miles testified that Claimant described the situation exactly as
noted above.    Miles acknowledged that Claimant never mentioned the possibility of
leaving the locker room when Kauffman first approached. Miles also testified that
friction existed between the two men, which he understood pertained to overtime.
However, Miles never personally witnessed any friction. Miles noted that Claimant’s
story remained consistent when he was interviewed a couple of days later. Miles
further testified that he believed that Claimant initiated the shoulder contact that led
to the confrontation and that both Claimant and Kauffman were fired as a result of the
same. (Reproduced Record (R.R.) at 22a-30a.)
             The referee proceeded to ask Miles additional questions with respect to
his interview with Kauffman.       In response to the referee, Miles testified that
Kauffman’s story was different from the story told by Claimant. More specifically,
Miles stated that Kauffman claimed that both men were yelling at each other after
bumping shoulders and the next thing Kauffman knew, he was on the floor being
punched by Claimant. Contrary to Claimant’s description, Kauffman alleged that he



                                            3
did not charge at Claimant but that both men approached each other. Kauffman told
Miles that he left the room as soon as he could escape. Additionally, Miles noted that
Kauffman denied that a second confrontation occurred outside the locker room.
Further, Miles denied seeing any bruises on Claimant immediately after the incident,
but did notice bruising under Kauffman’s right eye and a cut on the bridge of his
nose. (R.R. at 35a-36a.)
            Rosemary Hartman (Hartman), Employer’s Human Resources Manager,
testified that Employer had a zero tolerance policy toward violence, but stated that
this was the first application of the Policy that she experienced with Employer.
Hartman acknowledged that a lesser discipline could have been imposed under the
Policy, as it provides for discipline up to and including termination. Hartman stated
that she did not make the final decision regarding termination of Claimant and
Kauffman, and that the final decision to terminate was made by a review board at the
corporate level. (R.R. at 19a-21a.)
            Hartman further testified that she was involved in second interviews of
Claimant and Kauffman and that she was required to prepare an incident report to be
filed with the corporate office.      Hartman then identified the incident report she
prepared, which summarized the interviews with Claimant and Kauffman and
included photos of both employees taken after the incident.        Similar to Miles,
Hartman observed bruising under Kauffman’s right eye and a cut on the bridge of his
nose. Hartman further testified that Employer trains its employees on this Policy, and




                                            4
identified a training sheet that included Claimant’s printed name and employee
number, which indicated that he had received such training.2 (R.R. at 37a, 40a-42a.)
                Claimant offered testimony about the incident, which mirrored his
interview with Miles and the facts as described above. Claimant stated that he only
followed Kauffman out of the locker room and into the maintenance shop because the
supervisor’s office was located there and he wanted to wait for the supervisor to
return. Claimant maintained that there was no opportunity to escape because: (1) he
would have been required to turn his back on Kauffman during the first confrontation
or step towards Kauffman in the second confrontation in order to escape, and (2)
there was insufficient time to do so because the incidents occurred so quickly. (R.R.
at 48a, 57a.)
                Claimant admitted that he was aware of the Policy and the existence of
friction between him and Kauffman. Claimant stated that he was the union steward
for the maintenance shop.          He testified that he questioned management about
overtime and certain rules, which created disagreements. Claimant asserted that
Kauffman was violating shop rules and Claimant approached management about this.
Further, Claimant indicated that Kauffman had accused Claimant of tearing down one
of Kauffman’s calendars in the shop. Otherwise, Claimant stated that no cross words
were exchanged between he and Kauffman. Claimant noted that the confrontation at
issue occurred approximately one month after the original friction regarding
overtime. (R.R. at 49a, 52a-53a.)




       2
         Claimant did not actually sign this sheet. Hartman testified that some employees do not
want to sign their name, but they are required to print their name and place their employee number
on the sheet to acknowledge receipt of the training. (R.R. at 42a.)



                                                5
              By decision and order dated March 26, 2015, the referee reversed the
determination of the local service center, holding that Claimant was ineligible for
benefits under section 402(e) of the Law. The referee concluded that Claimant was
not acting in self-defense, but rather, he was a willful combatant in the fight. The
referee noted that Claimant had the ability to escape on three separate occasions, but
failed to take advantage of any of these opportunities. In doing so, the referee found
that Claimant exercised poor judgment and effectively escalated the situation with
Kauffman. Thus, the referee concluded that Claimant violated Employer’s Policy,
which constituted willful misconduct and rendered him ineligible for benefits under
section 402(e) of the Law. Claimant appealed the referee’s decision to the Board.
              By decision and order dated September 4, 2015, the Board reversed the
decision of the referee and held that Claimant was not ineligible for benefits under
section 402(e) of the Law.        The Board credited Claimant’s testimony and relied on
the same to find that Claimant had no time to extricate himself from the situation and
he was merely acting in self-defense. Thus, the Board concluded that Claimant’s
actions “were purely defensive and reasonable” and did not rise to the level of willful
misconduct. (Board’s op. at 3.) Employer subsequently filed an appeal with this
Court.
              On appeal,3 Employer argues that the Board improperly shifted the
burden to it to establish that Claimant did not act in self-defense and errantly focused
exclusively on who initiated the incident in analyzing this rule-violation case.
Employer also argues that the Board erred in concluding that Claimant’s actions did

         3
          Our scope of review is limited to determining whether constitutional rights have been
violated, whether an error of law has been committed, or whether findings of fact are supported by
substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.C.S. §704; Krum v.
Unemployment Compensation Board of Review, 689 A.2d 330, 332 (Pa. Cmwlth. 1997).



                                                6
not rise to the level of willful misconduct because Claimant escalated the situation
instead of attempting to extricate himself from the same.          We disagree with
Employer’s arguments.
            The employer bears the burden of proving that the employee’s actions
rose to the level of willful misconduct. Stauffer v. Unemployment Compensation
Board of Review, 455 A.2d 300, 301 (Pa. Cmwlth. 1983). Whether an employee’s
actions constitute willful misconduct is a question of law subject to review by this
Court. Noland v. Unemployment Compensation Board of Review, 425 A.2d 1203,
1205 (Pa. Cmwlth. 1981). While the Law does not define willful misconduct, our
courts have interpreted it as including: (1) the wanton or willful disregard of the
employer’s interests; (2) the deliberate violation of the employer’s rules; (3) the
disregard of the standards of behavior which an employer can rightfully expect from
an employee; or (4) negligence which manifests culpability, wrongful intent, evil
design, or intentional and substantial disregard for the employer’s interests or the
employee’s duties and obligations. Guthrie v. Unemployment Compensation Board
of Review, 738 A.2d 518, 521 (Pa. Cmwlth. 1999).
            An employer alleging a work rule violation bears the burden of
establishing both the existence of a reasonable work rule and its violation. Daniels v.
Unemployment Compensation Board of Review, 755 A.2d 729, 731 (Pa. Cmwlth.
2000).   If an employer meets its initial burden to establish the existence of a
reasonable work rule and its violation, the burden shifts to the claimant to
demonstrate good cause for violating the rule.      Guthrie, 738 A.2d at 522.       “A
claimant has good cause if his or her actions are justifiable and reasonable under the
circumstances.” Docherty v. Unemployment Compensation Board of Review, 898
A.2d 1205, 1208-09 (Pa. Cmwlth. 2006).



                                          7
             “Even in the absence of a written policy, fighting may be considered a
disregard of the standards of behavior that an employer can expect from its
employees, even when the claimant was not the initial aggressor.”             Miller v.
Unemployment Compensation Board of Review, 83 A.3d 484, 487 (Pa. Cmwlth.
2014). In such situations, where a claimant has the opportunity to retreat and seek
help but instead willingly continues to escalate the situation, the claimant’s actions
are “neither reasonable nor justifiable and [do] not constitute good cause.” Rivera v.
Unemployment Compensation Board of Review, 526 A.2d 1253, 1256 (Pa. Cmwlth.
1987). However, when a claimant has a reasonable belief of imminent bodily harm
and fears he is in danger of an assault, he is justified in using reasonable retaliatory
force for purposes of self-defense. Miller, 83 A.3d at 487 (“using reasonable force in
self-defense is, in some situations, justifiable”); see also Sun Oil Company v.
Unemployment Compensation Board of Review, 408 A.2d 1169, 1171 (Pa. Cmwlth.
1979) (“A reasonable belief of imminent bodily harm and feared danger of an assault
justifies reasonable retaliatory force.”).
             In the present case, Employer first argues that the Board improperly
shifted the burden to it to establish that Claimant did not act in self-defense.
However, Employer fails to point to where this shifting occurred in the Board’s
decision. Instead, Employer merely recites the burdens in a rule-violation case and
asserts that Claimant had the burden to establish good cause. A review of the Board’s
decision reveals that the Board appears to have found that Employer met its initial
burden of establishing the existence of a rule and its violation and considered the only
remaining question to be whether Claimant had good cause for violating the same.
Indeed, the Board’s findings of fact discuss Employer’s Policy and include direct
quotes from the same. These findings proceed to review the specific actions of



                                             8
Claimant and Kauffman during the incident in question.                     While the Board’s
discussion reiterates the general burden on an employer to establish willful
misconduct, we fail to see any indication that the Board improperly shifted the burden
to Employer to establish that Claimant did not act in self-defense.
              Next, Employer argues that the Board errantly focused exclusively on
who initiated the incident in analyzing this rule-violation case. We do not agree. In
its discussion, the Board did state that Claimant’s co-worker, Kauffman, “was clearly
the aggressor” and “instigated the entire incident.” (Board op. at 3.) However, the
Board did not rely exclusively on these statements in analyzing this case. Rather, the
Board went further to note that Claimant “did not have time to extricate himself from
the situation and his actions were purely defensive and reasonable.” Id. The Board
also noted that Claimant never struck Kauffman when responding to either attack.
Ultimately, the Board found that Claimant was acting, at all times, in self-defense and
concluded that his actions did not amount to willful misconduct. Upon review of the
Board’s decision, it appears that the Board engaged in a proper analysis in reaching
this conclusion.4
              Finally, Employer argues that the Board erred in concluding that
Claimant’s actions did not rise to the level of willful misconduct because Claimant
escalated the situation instead of attempting to extricate himself from the same.
However, in making this argument, Employer ignores the facts found by the Board
and asks this Court to accept its preferred version of the facts. The law is well settled
that the Board is the ultimate finder of fact and arbiter of witness credibility. Bruce v.

       4
          We note that a determination of who is the aggressor is necessarily part of the required
analysis in a case involving workplace violence and impacts directly on the question of good cause.
While it may be improper for the Board to rely exclusively on such a determination in workplace
violence cases, the Board simply did not do so here.



                                                9
Unemployment Compensation Board of Review, 2 A.3d 667, 671 (Pa. Cmwlth. 2010).
Thus, as long as the Board’s factual findings are supported by substantial evidence,
those findings are conclusive on appeal. Id.
             The Board found that Kauffman initiated the incident by bumping
Claimant’s shoulder as they passed each other in the locker room, after which
Kauffman began yelling at Claimant and aggressively approached him. By that point,
the Board found that Claimant had turned and his back was to the locker room door.
Additionally, the Board found that Kauffman charged Claimant a second time
immediately after he exited the locker room. In both instances, the Board found that
Claimant had no time to extricate himself from the situation. These findings are
supported by Claimant’s testimony, which the Board credited in reaching its decision,
and are conclusive on appeal. Further, these findings support the Board’s conclusion
that Claimant’s actions did not rise to the level of willful misconduct.
             Accordingly, the order of the Board is affirmed.




                                            ________________________________
                                            PATRICIA A. McCULLOUGH, Judge




                                           10
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Armstrong World Industries,        :
                 Petitioner        :
                                   :    No. 1724 C.D. 2015
            v.                     :
                                   :
Unemployment Compensation          :
Board of Review,                   :
                 Respondent        :


                                ORDER


            AND NOW, this 15th day of September, 2016, the order of the
Unemployment Compensation Board of Review, dated September 4, 2015, is
hereby affirmed.




                                       ________________________________
                                       PATRICIA A. McCULLOUGH, Judge