IN RE: the Claim of Kevin P. SMALL (2024)

MEMORANDUM AND ORDER

Appeal from a decision of the Unemployment Insurance Appeal Board, filed January 6, 2023, which ruled, among other things, that claimant was disqualified from receiving unemployment insurance benefits because his employment was terminated due to misconduct.

Claimant, a carpenter, was involved in a verbal altercation with a coworker that escalated into physical contact.  Following a full evidentiary arbitration hearing pursuant to the terms of the collective bargaining agreement at which claimant was represented by counsel, the arbitrator found that claimant's behavior toward his coworker, which violated various policies of the employer, warranted his discharge.  With respect to claimant's subsequent application for unemployment insurance benefits, the Unemployment Insurance Appeal Board modified the decision of the Administrative Law Judge by finding that claimant lost his employment due to disqualifying misconduct.  Claimant appeals.

Initially, we note that the record indicates that claimant had a full and fair opportunity to litigate the issue of misconduct during the arbitration hearing and the Board appropriately gave collateral effect to the arbitrator's factual findings regarding claimant's conduct toward the coworker (see Matter of Samuels [New York City Tr. Auth.-Commissioner of Labor], 118 A.D.3d 1206, 1206–1207, 987 N.Y.S.2d 270 [3d Dept. 2014], lv denied 24 N.Y.3d 905, 2014 WL 4693871 [2014]).  Further, and contrary to claimant's contention, the record reflects that the Board thereafter “made an independent evaluation as to whether that conduct constitute[d] misconduct for the purposes of unemployment insurance” (Matter of Chohan [Commissioner of Labor], 108 A.D.3d 920, 921, 968 N.Y.S.2d 417 [3d Dept. 2013] [internal quotation marks and citation omitted];  see Matter of Samuels [New York City Tr. Auth.-Commissioner of Labor], 118 A.D.3d at 1207, 987 N.Y.S.2d 270).  Turning to the Board's decision, inasmuch as fighting with a coworker can constitute disqualifying misconduct, substantial evidence supports the Board's finding that claimant's unprovoked aggression toward his coworker, which included cursing, vulgarities and physical contact, disqualified him from receiving unemployment insurance benefits, and its decision will not be disturbed (see Matter of Jones [Commissioner of Labor], 100 A.D.3d 1134, 1134, 953 N.Y.S.2d 513 [3d Dept. 2012];  Matter of Hernandez [Commissioner of Labor], 98 A.D.3d 1185, 1185, 950 N.Y.S.2d 833 [3d Dept. 2012]).  Claimant's remaining contentions, including that he had no prior warnings for engaging in inappropriate conduct, have been reviewed and found to be without merit.

ORDERED that the decision is affirmed, without costs.

Lynch, J.

Clark, J.P., Pritzker, Fisher and Powers, JJ., concur.