STEVE COLSTON APPELLANT v. KENTUCKY UNEMPLOYMENT INSURANCE COMMISSION AND LOUISVILLE FREE PUBLIC LIBRARY APPELLEES (2012)

NOT TO BE PUBLISHED

OPINIONAFFIRMING

Steve D. Colston brings this appeal from a March 31, 2011, Opinion and Order of the Jefferson Circuit Court affirming a decision of the Kentucky Unemployment Insurance Commission (Commission) to deny Colston unemployment benefits.   We affirm.

The underlying facts of this controversy are largely undisputed.   Colston was a maintenance mechanic employed by Louisville Free Public Library (Library).   He started his employment with the Library on November 12, 2002.   Colston was also a member and President of Local 3425 of the American Federation of State, County, and Municipal Employees (union).

On March 12, 2009, Colston was taking part in a meeting of the union negotiating committee.   The meeting took place at the union headquarters with only union members in attendance.   During the meeting, Colston became upset and grabbed a union member attending the meeting by the shirt collar.   The union member was also an employee of the Louisville Metro Government.   As a result of the altercation, Colston was discharged from employment with the Library for violating Sections 1.9 and 1.6 of the Louisville Metro Government Workplace Policies prohibiting violence against a fellow employee.

Colston filed an application for unemployment insurance benefits.   Eventually, the Commission determined that Colston was not entitled to unemployment insurance benefits because he was discharged for misconduct.   Kentucky Revised Statutes (KRS) 341.370(1)(b).  Thereupon, Colston sought judicial review of the Commission's decision with the Jefferson Circuit Court.  KRS 341.450(1).   By opinion and order entered March 31, 2011, the circuit court affirmed the Commission's denial of unemployment insurance benefits.   Our review follows.

To begin, our review of the Commission's decision to deny unemployment benefits is somewhat limited.  Thompson v. Ky. Unemployment Ins. Comm'n, 85 S.W.3d 621 (Ky.2002).   The Commission's findings of fact are upheld if supported by substantial evidence, and issues of law are reviewed de novo.   Wilson v. Ky. Unemployment Ins. Comm'n, 270 S.W.3d 915 (Ky.App.2008).   Ordinarily, the application of facts to law presents an issue of law subject to de novo review.  Id.

Colston contends that the Commission's decision to deny him unemployment insurance benefits was improper.   Colston maintains that his behavior at the meeting was not connected to work, that he did not knowingly violate a workplace rule, and that the Library failed to demonstrate that the workplace rule was uniformly enforced.   For the reasons hereinafter set forth, we disagree.

Under KRS 341.370(1)(b), a worker is disqualified from receiving unemployment insurance benefits if the worker was “discharged for misconduct ․ connected with ․ work.”   The term “discharge for misconduct” is defined, in part, as “separation initiated by an employer for ․ knowing violation of a reasonable and uniformly enforced rule of the employer [.]”  KRS 341.370(6).

The Commission found that Colston violated two workplace rules – Louisville Metro Government Personnel Policies (LMGPP) §§ 1.6(1)(a) and 1.9.

LMGPP § 1.6(1)(a) provides, in part:

Employees shall deal with co-workers and the public in a respectful and courteous manner.

And, LMGPP § 1.9 states, in part:

Violence, or the threat of violence, by or against any employee of Metro Government or other person, is unacceptable and contrary to the policy of Louisville Metro Government.   The following activities, while not all-inclusive, are considered violent acts or threats of violence.   Any employee participating in the following behavior will be subject to disciplinary action up to and including termination of his or her employment, and possible criminal charges:

 Physical harm or beatings resulting in injury or death;  rape, sexual assault, sexual harassment, sexual abuse, strangulation, gun shot wounds, and stabbing.

 Verbalized threats, stalking, etc.

 Intentional acts resulting in property damage, and/or theft.

 Harassment, verbal or physical, which may result in creating an intimidating, hostile, or offensive work environment.

It is undisputed that at the time of the union meeting Colston was being paid his regular wages by the Library and was involved in issues related to his employment with the Library.   Thus, we think a sufficient nexus exists between Colston's employment and the union meeting to satisfy the connected with work requirement of KRS 341.370(1)(b).  And, to contend that these workplace rules are only applicable while Colston is actually at the workplace defies any reasonable interpretation.   A worker being paid by his employer to attend a meeting is certainly on notice that workplace rules are applicable to guide his behavior.

Additionally, we view as specious Colston's argument that he did not knowingly violate workplace rules and that these rules were otherwise unreasonable.   Both workplace rules were contained in the Louisville Metro Government Personnel Policies and could have been discerned by Colston with reasonable effort.   Moreover, it is reasonable to expect fellow employees to interact in a nonviolent and amicable manner when engaging in work-related activities, at any time or location.

Colston also argues that LMGPP §§ 1.6 and 1.9 were not “uniformly” enforced per KRS 341.370(6).   However, it does not appear that the Commission considered this argument or that Colston raised it before the Commission.   In the Commission's order, it stated “[t]here is no suggestion the employer's rule is not uniformly applied and enforced.   As such, there is a presumption it is so applied and enforced.”   Order at 3. Thus, we do not believe this issue is properly before us for judicial review.   See Wilson, 270 S.W.3d 915.

In sum, we conclude that Colston's conduct at the union meeting amounted to a violation of LMGPP §§ 1.6 and 1.9 and that such violations constituted “misconduct” within the meaning of KRS 341.370(1)(b) and KRS 341.370(6).   Thus, the Commission properly determined that Colston was disqualified from receiving unemployment insurance benefits.

For the foregoing reasons, the Opinion and Order of the Jefferson Circuit Court is affirmed.

ALL CONCUR.

TAYLOR, CHIEF JUDGE: