LARRY D. SEITZ , Plaintiff-Appellant,

vs.

ADMINISTRATOR, OHIO  BUREAU OF EMPLOYMENT SERVICES, ET AL.,

Defendants-Appellees

No. 48567
COURT OF APPEALS OF OHIO, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
Slip Opinion
April 11, 1985

CHARACTER OF PROCEEDING: Civil Action from Common Pleas Court, Case No. 063895.

 COUNSEL

 

 JUDGES

PARRINO, P.J., JACKSON, J. CONCUR.
 AUTHOR: KRUPANSKY

 OPINION

 

 

 
JOURNAL ENTRY and OPINION

 

Larry D. Seitz was hired by E.I. DuPont & Company >(Company) on August 2, 1974. He was discharged by the company on February 21, 1983. The grounds for termination were unauthorized possession of a knife which he used as a weapon in a fight at the plant on February 17, 1983.

 

Seitz filed an application for unemployment compensation with the Ohio Bureau of Employment Services (the Bureau) on February 24, 1983. This application was denied on March 29, 1983 because he had been discharged for just cause. On April 5, 1983 claimant requested a reconsideration of this determination. On May 12, 1983, the Administrator of the Bureau affirmed the initial decision to deny the claimant unemployment benefits. After a hearing on June 16, 1983, a hearing examiner of the Board of Review affirmed the Administrator's decision. On August 9, 1983, the Board of Review disallowed claimant's application for further review.

 

On March 29, 1984, the Court of Common Pleas affirmed the decision of the Board of Review. Claimant then filed this timely appeal.

 

Five witnesses testified at the hearing - two for the company and three for the claimant. Seitz worked a forty-hour week on rotating shifts as a chemical treater. All members of his department had been issued knives as part of their equipment. The knives had 3-12" blades and were used to open bags and cut heavy plastic straps. Seitz was a member of DuPont Local No. 5.

 

Rule 5 of the company's work rules prohibits horseplay, fighting, and provoking fights. Violation of the rule can subject the employee to discharge. Rule 2 bans weapons in the plant. Although these rules are posted, all of the employees should have received copies of them.

 

Three weeks prior to the fight, claimant complained to Mr. Milburn, his production supervisor. Claimant was not getting along with Mr. Carraway, the chemical treater on the shift before claimant's. Milburn spoke separately with both employees and told them they would have to learn to get along. He spoke to the men a week later and it appeared they were settling some of their differences.

 

The fight took place in a lunchroom, at the shift changeover, at 9:00 p.m. while claimant was getting the relief report from Carraway. Claimant ignored what Carraway was saying, Carraway became angry and told claimant to look at him while he was talking. Carraway then called claimant an S.O.B. and an M.F. Claimant ran towards Carraway, backed him against a wall, put his knife blade up to Carraway's throat and demanded, "Who's a M.F.?" and "Do you want your throat cut?" Claimant testified that he didn't touch Carraway at all, and the knife was about one inch from Carraway's throat. He stated that he made no slicing or jabbing movements with it.

 

Carraway went home. Claimant went to work at his station. Company officials called him from his work station to an investigatory meeting. Claimant asked that a union representative be present if there could be serious consequences from the meeting. His request was ignored. The union president, notified of the fight by persons unknown, requested permission to enter the plant and attend the meeting. He was denied admission.

 

Claimant was sent home about 10:00 p.m. and was notified four days later of his discharge for fighting. Carraway, who had provoked the fight, received a formal contact, the last step before discharge in the company's progressive discipline system. The union filed a step one grievance on behalf of claimant, but no further action has been taken.

 

Two of claimant's witnesses testified that although fights with weapons had taken place at the plant in the past, none of the employees involved had been fired.

 

Appellant Seitz assigns four errors. The first of the assignments is as follows:

 

THE COMMON PLEAS COURT COMMITTED AN ABUSE OF DISCRETION BY AFFIRMING THE REFEREE'S FINDINGS OF FACT WHICH WERE UNREASONABLE, CONTRARY TO THE MANIFEST WEIGHT OF THE EVIDENCE, AND WERE UNSUPPORTED BY SUBSTANTIAL EVIDENCE.

 

The basic issue is whether the company had just cause to discharge the appellant, pursuant to R.C. 4141.29(D)(2)(a), which reads in pertinent part:

 

"(D) . . . no individual may serve a waiting period or be paid benefits under the following conditions:

 

* * *

 

(2) For the duration of his unemployment if the administrator finds that:

 

(a) He quit his work without just cause or has been discharged for just cause in connection with his work, . . ."

 

The Court of Appeals for Franklin County has said, "There is, of course, not a slide-rule definition of just cause. Essentially, each case must be considered upon its particular merits. Traditionally, just cause in the statutory sense, is that which, to an ordinarily intelligent person, is a justifiable reason for doing or not doing a particular act." Peyton v. Sun T.V. (1975), 44 Ohio App. 2d 10, 12. Therefore, this court must examine the facts of this individual case to determine whether there was just cause.

 

The standard of review the Court of Common Pleas must use in its evaluations is set out in the statute: "[I]f the court finds that the decision was unlawful, unreasonable, or against the manifest weight of the evidence, it shall reverse and vacate such decision . . ." Ohio R.C. Section 4141.28(O). The Court of Appeals may reverse the lower court only if an abuse of discretion is shown. Angelkovski v. Buckeye Potato Chips (1983), 11 Ohio App. 3d 159.

 

See, Brown Brockmeyer v. Roach (1947), 148 Ohio St. 511.

 

The case law in Ohio holds that fighting in violation of a company rule is grounds for dismissal. The Court of Common Pleas of Franklin County said, "Even in a criminal proceeding, vile or abusive language, . . . no matter how provocative, do[es] not justify an assault." Ralph Derck v. Cortez Corporation [1971-1979 Ohio Transfer Binder] Unempl. Ins. Rep. (CCH) paragraph 8895. In that case, the claimant was involved in an argument where there was name calling. Claimant threw the first punch. Testimony revealed he was not "an unwilling participant" in the fight and he "made no effort to halt the confrontation." Id. He was dismissed for violation of a plant rule prohibiting fighting on the premises. The court found he was dismissed for just cause.

 

These facts are strikingly similar to the case sub judice. Appellant responded to vulgar words by pulling out his knife, pushing his fellow employee against the wall and demanding if he wanted his throat cut. The company had expressly prohibited fighting in its work rules. This is precisely the type of reaction to an argument which the court in Derck condemned, and for which dismissal is a justifiable response.

 

The testimony of the witnesses in the case sub judice clearly supports the findings of facts of the hearing examiner. In pertinent part, the examiner found:

 

On February 17, 1983, an argument developed between the claimant and Dennis Carraway during which obscenities were directed against the claimant. This caused the claimant to become angry and push Dennis Carraway against the wall, pull the knife and threaten to cut his throat.

 

* * *

 

The facts set forth above necessitate the conclusion that claimant's discharge was based upon an act by the claimant which constituted a violation of the employment agreement and established on the part of the claimant a willful disregard of the employer's interest; therefore, it must be held that claimant was discharged for just cause in connection with work> and the disqualification for benefits set forth in Section 4141.29(D)(2)(a), Revised Code of Ohio, was properly imposed. (Decision of the hearing examiner, p. 2).

 

Appellant testified that Carraway used obscenities against him. (Tr. at p. 32). In response, appellant pulled out his knife and asked Carraway if he wanted his throat cut. (Tr. at p. 33). Appellant denies pushing Carraway; his testimony reveals the following:

 

Q. And did you put your hand on him?

 

A. I might of touched -- I didn't physically push him I just kind of with my chest like you know -- I don't even think I grazed him I just had my hand out stretched toward him.

 

Q. Did you have it on his person?

 

A. No I didn't.

 

Q. And did you take out a knife?

 

A. Yes I did.

 

Q. And was this knife provided to you for your use by the company?

 

A. Yes it was.

 

Q. And what kind of a knife was it?

 

A. A folding pocket knife.

 

Q. Did you open the pocket -- the knife?

 

A. Yes I did.

 

Q. And what did you tell Mr. Carraway?

 

A. I asked him "Who was a mother fucker" and I asked him "If he would like his throat cut." He answered me, "No," and at that time I turned and walked away again. And then Dennis started opening up his mouth again and Andy Tolbert had to physically push him out of the lunchroom so to keep the kid from getting hurt 'cause I sure didn't need a knife to hurt him if I wanted to.

 

(Tr. 32-33). The appellant's admissions substantiate the referee's findings that appellant violated the work rule against fighting and consequently violated the employment agreement and disregarded his employer's interest.

 

Based on appellant's testimony alone, the hearing examiner had sufficient evidence to make his findings of fact.

 

Appellant's first assignment of error is without merit.

 

Appellant's second assignment of error:

 

THE COMMON PLEAS COURT COMMITTED REVERSIBLE ERROR BY FAILING TO APPLY OHIO LAW WHICH HOLDS THAT A DISCHARGE IS WITHOUT JUST CAUSE WHERE AN EMPLOYEE BREACHES AN UNFAIRLY ADMINISTERED WORK RULE.

 

Appellant argues the company rule prohibiting fighting and provoking fights was unfairly administered since Carraway received only a written contact while appellant was discharged. Consequently, he claims that the discharge was without just cause. This argument is completely without merit.

 

Hamilton County's Court of Common Pleas held that to dismiss with just cause an employee who violates a company rule, the rule must be both fair and fairly administered. Harp v. Admnr., Bureau of Unemployment Compensation (1967), 12 Ohio Misc. 34, 38. That court cautioned the employer to examine the facts of each violation to determine whether the employee's actions were or were not justifiable. Id.

 

The company in the present case did precisely that. Both employees were interviewed to determine what happened. An eyewitness was interviewed. The company determined that Carraway swore at appellant, who reacted by pulling his knife and offering to cut Carraway's throat. Although neither party acted admirably, there was a distinct difference in their conduct. Appellant overreacted in response to the obscenities; he could have left the room and reported the incident to Mr. Milburn, the production supervisor. The company has an interest in maintaining safety and peace among the employees.

 

The company investigated the fight, spoke to the parties involved and to an eyewitness. Based on its findings, it disciplined the employees fairly. The Senior Supervisor of Employee Relations testified, "The discipline that we issue is commensurate with the violation." (Tr. at p. 12). The reason these employees received different treatment was the reasonable consequence of their unequal actions.

 

Appellant attempts to argue that previous fights with weapons had not resulted in dismissal of any employees. Walter Pease, a 20-year employee of the company and union president, testified that other fights involving knives had not resulted in discharge. (Tr. at p. 45). However, he did not provide any details on those fights. Claude Williams a 12-year employee of the company, also testified that fights with weapons had not previously resulted in discharge. (Tr. at p. 50). Pease also admitted that he wasn't sure if management even knew about most of these fights. If management was unaware of fights involving weapons, it could not discipline the employees. Therefore, testimony that other employees who had not been fired for fighting is meaningless and insufficient to support claims of past practice if no facts are presented to substantiate these claims.

 

Appellant next makes the following assignment of error:

 

THE COMMON PLEAS COURT COMMITTED REVERSIBLE ERROR BY FAILING TO APPLY OHIO LAW WHICH HOLDS THAT AN EMPLOYER DISCHARGES WITHOUT JUST CAUSE A CLAIMANT WHO BREACHES A POORLY EXPLAINED AND MISUNDERSTOOD THE WORK RULE AND ASSOCIATED PENALTY.

 

Appellant argues the company failed to give the employees work rules concerning unacceptable use of the knives it had supplied to them. Therefore, appellant cannot be discharged for misusing the knife. This argument is completely without merit.

 

If just cause for discharge is the "kind of conduct which an ordinarily intelligent person would regard as a justifiable reason for discharging an employee," certainly it exists in the present case. Angelkovski v. Buckeye Potato Chips Co. (1983), 11 Ohio App. 3d 159, 162. An ordinarily intelligent person would certainly regard the use of any tool as a weapon as justifiable grounds for discharge. Common sense alone dictates that the tool was not issued as the means of killing or threatening to kill another employee. To require the company to set forth such guidelines carries the need for rulemaking to an absurdity.

 

In addition, the appellant was discharged as a consequence of his fighting in violation of company Rule 5. Although he claims not to have received a copy of the Rules, appellant admitted that they were posted. (Tr. at p. 29). He knew he could be discharged for fighting. Violation of Rule 5 was a willful disregard of his employer's interests and constitutes just cause for dismissal.

 

The third assignment of error is without merit.

 

In his last assignment, appellee claims:

 

THE COMMON PLEAS COURT COMMITTED REVERSIBLE ERROR BY FAILING TO FIND THAT A DISCHARGE IS WITHOUT JUST CAUSE WHERE SAID DISCHARGE VIOLATES FEDERAL LABOR LAW.

 

The hearing examiner, the Board of Review, and the courts have jurisdiction in this matter to determine whether the claimant has a right to receive unemployment benefits. R.C. Sec. 4141.28(B)(1)(b). In this case, the issue was whether Larry Seitz was discharged for just cause in connection with his work, pursuant to R.C. Sec. 4141.29(D)(2)(a). Each review and appeal was premised on whether the company had just cause to fire him.

 

Appellant claims to have been denied rights available to him through the federal labor laws. See, NLRB v. Weingarten, Inc. (1975), 420 U.S. 251. However, he must first attempt to use the collective bargaining agreement's grievance proceedings to resolve his claim before resorting to judicial enforcement of it. Republic Steel Corp. v. Maddox (1965), 379 U.S. 650. Nonetheless, the facts which give rise to that potential claim are irrelevant to the determination of whether appellant was discharged for just cause when he fought with Carraway. Therefore, this court and the court below do not have the statutory jurisdiction to examine this aspect of the claim.

 

This assignment of error is without merit.

 

Therefore, the Court of Common Pleas did not abuse its discretion since its findings were lawful, reasonable, and sustained by the manifest weight of the evidence.

 

The decision of the Court of Common Pleas is affirmed.

 

It is ordered that appellee recover of appellant its costs herein taxed.

 

The Court finds there were reasonable grounds for this appeal.

 

It is ordered that a special mandate issue out of this Court directing the Common Pleas Court to carry this judgment into execution.

 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.

 

N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run.

 DISPOSITION
 

JUDGMENT: Affirm.