Opinion
Argued February 5, 1976
May 21, 1976.
Unemployment compensation — Wilful misconduct — Unemployment Compensation Law, Act 1936, December 5, P.L. (1937) 2897 — Vulgar language.
1. The use of vulgar language by an employe which was neither de minimis nor sufficiently provoked to be excusable can constitute wilful misconduct such that an employe discharged therefor can be denied benefits under the Unemployment Compensation Law, Act 1936, December 5, P.L. (1937) 2897. [572-3]
Judge KRAMER did not participate in this decision.
Argued February 5, 1976, before Judges KRAMER, ROGERS and BLATT, sitting as a panel of three.
Appeal, No. 1000 C.D. 1975, from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Larry Boff, No. B-125999.
Application to Bureau of Employment Security for unemployment compensation benefits. Application denied. Applicant appealed to the Unemployment Compensation Board of Review. Denial affirmed. Applicant appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
James M. Shilliday, for appellant.
Charles G. Hasson, Assistant Attorney General, with him Sydney Reuben, Assistant Attorney General, and Robert P. Kane, Attorney General, for appellee.
This is an appeal from a decision and order of the Unemployment Compensation Board of Review (Board) affirming a referee's determination that Larry Boff (claimant) was ineligible for benefits, having been dismissed for willful misconduct connected with his work. See Section 402(e) of the Unemployment Compensation Law, 43 P. S. § 802(e). The claimant was employed by the Central Tax Bureau as an assistant manager in one of that organization's Pittsburgh offices. The referee made two pertinent findings of fact.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended.
"2. During the latter part of this employment, the employer had considered the claimant to be an unsatisfactory employee because of various reasons one of which was using vulgar and profane language in the presence of female employees.
"3. On December 27, 1974, claimant directed vulgar and profane language towards his supervisor."
It appears that the supervisor left for a vacation on December 27, 1974, but, upon his return and after a meeting with the claimant, ordered the claimant's discharge on January 20, 1975 citing the misconduct noted.
As we have said in the past, not all instances of vulgar and offensive language addressed to a superior constitute such willful misconduct on the part of an employee as will justify denial of benefits. Horace W. Longacre Inc. v. Unemployment Compensation Board of Review, 12 Pa. Commw. 176, 316 A.2d 110 (1974). Generally, it is not considered willful misconduct if there has been justifiable provocation and if the language is de minimis, and such a determination, of course, is left to the sound discretion of the Board which can judge credibility and weigh the evidence. Here it appears that the claimant was called to his supervisor's office on December 27, 1974 and was reprimanded for the manner by which he had delivered Christmas paychecks and bonuses to the other employees. As the claimant left the office, one of the clerical employees relayed to him a directive from the supervisor which brought about the claimant's vulgar and insubordinate expressions toward the supervisor.
We have carefully reviewed the record and believe that the claimant's language here was neither de minimis nor sufficiently provoked to be excusable. And, while there was some evidence that vulgar language was normally used in the office, we do not believe that the Board abused its discretion in concluding that the claimant's conduct as here recorded constituted willful misconduct. Fields v. Unemployment Compensation Board of Review, 7 Pa. Commw. 200, 300 A.2d 310 (1973); Jarema Unemployment Compensation Case, 196 Pa. Super. 70, 1973 A.2d 698 (1961).
We, therefore, issue the following
ORDER
AND NOW, this 21st day of May, 1976, the decision and order of the Unemployment Compensation Board of Review denying benefits to Larry Boff is hereby affirmed.
Judge KRAMER did not participate in the decision in this case.