Gibson v. Review Board of the Indiana Department of Workforce Development , 1996 Ind. App. LEXIS 1484 ( 1996 )

OPINION

STATON, Judge.

David G. Gibson ("Gibson") appeals the determination of the Review Board of the Indiana Department of Workforce Development ("Board") that Gibson is not entitled to unemployment compensation benefits. The sole issue presented for review is whether the Board erred when it found that Gibson was terminated for just cause thus making him ineligible for unemployment benefits.

We affirm.

The facts most favorable to the Board's decision reveal that Gibson was participating in a strike against Bridgestone, his employer. On December 10, 1994, Gibson was on a picket line carrying a holstered handgun. He was picketing in front of a plant entrance used by temporary replacement workers. Replacement workers had complained to management that they were threatened and seared by the presence of firearms on the picket line. It was for this conduct that Gibson was discharged by Bridgestone.

Subsequently, Gibson applied for unemployment compensation. An administrative law judge (ALJ) initially ruled in favor of Gibson. Later, the ALJ's decision was reversed by the Board. The Board found Gibson was discharged for just cause, since his conduct endangered the safety of himself or coworkers within the meaning of § 22-4-15-i(d)(7) (1998). This appeal ensued.

Whether an employer had just cause to discharge an employee is a question of fact for the Board. Russell v. Review Bd. of Indiana Dept. of Employment and Training Services, 586 N.E.2d 942, 948 (Ind.Ct. App.1992). Board decisions regarding all questions of fact are conclusive and binding on an appellate tribunal if supported by the evidence. Id. Our review is limited to examination of the evidence and reasonable inferences drawn therefrom which would support the Board's decision. Marsdem v. Review Bd. of Indiana Dept. of Workforce Development, 654 N.E.2d 907, 909 (Ind.Ct. App.1995), reh. denied. Only where reasonable persons, considering only the evidence supporting the Board's findings, would be bound to reach a different conclusion will we overturn the Board's findings. Id.

We conclude that a reasonable person would not be bound to reach a result different from the Board's. The picket line is often a very highly and emotionally charged situation. The livelihoods of the strikers are at risk. Those who do not participate in the strike and those who are hired as replacement workers are often the subject of abuse by striking workers.. It was not unreasonable for the Board to find Gibson's purpose in arming himself at the picket line was to intimidate replacement workers. There is evidence in the record that temporary workers expressed to management their concern over the presence of firearms on the picket line. Introducing a firearm in this emotionally charged situation could easily lead to an escalation of tension and physical confrontation between the strikers and the replacement workers.¹ It is this type of activity which could cause replacement workers to arm themselves, increasing the risk of a violent and deadly outburst. Under these circumstances, we conclude that the Board's finding that Gibson's conduct endangered the safety of himself or coworkers is supported by the evidence, and a reasonable person would not be bound to reach a different conclusion.²

In support of his position, Gibson contends that in order to satisfy Ind.Code § 22-4-15-1(d)(7) it must be shown that his conduct created an actual danger or immediate risk of harm to oneself or coworkers. § 22-4-15-1(d)(7) provides that discharge for just cause shall include "conduct endangering safety of self or coworkers." - Gibson invites us to graft onto IC 22-4-15-1(d)(7) a requirement that there be an actual danger or immediate risk of harm to oneself or fellow employees. Where a statute is clear and unambiguous, it is not the subject of statutory construction. Indiana Patient's Comp. Fund v. Anderson, 661 N.E.2d 907, 909 (Ind.Ct.App.1996), trans. denied. An unambiguous statute must be held to mean what it plainly expresses, and its plain and obvious meaning may not be expanded or restricted. George P. Todd Funeral Home v. Beckner, 668 N.E.2d 786, 787 (Ind.Ct.App.1996). We glean no inherent ambiguity from the phrase "conduct endangering safety of self or coworkers" which warrants a new judicial interpretation changing the statutes meaning by grafting a requirement of actual danger or immediate risk of harm onto IC 22-4-15-1(d)(7).

Gibson relies on a passage from St. Mary's Med. Center of Evansville, Inc. v. Review Bd. of the Indiana Employment Security Div., 498 N.E.2d 1275 (Ind.Ct.App.1986) as authority that IC 22-4-15-1(d)(7) requires a showing of actual danger or risk of harm. St. Mary's involved the termination of a hospital employee for slapping another employee who was holding an infant. The employee was terminated for violating a hospital rule prohibiting conduct endangering self or others. According to St. Mary's, the employee endangered another since the employee holding the infant could have dropped the infant after being slapped. The Board found for the employee and awarded unemployment compensation.

The passage relied upon by Gibson reads: "St. Mary's further argues that the Board unreasonably interpreted 'endangerment' to require actual physical harm. On the contrary, the Board merely required that there be actual danger or risk of harm." S. Mary's, supra, at 1278. This passage is dicta and does not impose any additional requirement upon IC 22-4-15-1(d)(7). This court was simply noting the standard the Board applied in interpreting a rule of St. Mary's under the particular facts of that case. Too, we were analyzing the sufficiency of the evidence supporting the Board's decision. - It was not a standard which this court adopted as an outcome determinative test for IC 22-4-15-1(d)(7), as Gibson urges in this case. We do not agree that St Mary's requires a showing of actual danger or immediate risk of harm in order for an employer to demonstrate just cause for discharging an employee under IC 22-4-15-1(d)(7).

For the above reasons, we affirm the Board's finding that Gibson was discharged for just cause, since he engaged in conduct endangering the safety of himself or coworkers.

Affirmed.

SHARPNACK, C.J., concurs. HOFFMAN, J., dissents with opinion.

1 . Replacement workers are commonly referred to as "scabs" by striking workers. This teem itself highlights the inherent animosity between these two groups.

2 . Gibson also contends that carrying a handgun at this plant did not provide just cause for his termination since he is a licensed firearms dealer and that the presence of firearms in this plant was not unusual as many employees carried and dealt in firearms. However, Gibson was carrying the firearm while on a picket line and not in his capacity as a dealer. As noted above, Gibson's intent in carrying the gun under these circumstances was to intimidate temporary workers, not to negotiate for the sale of a firearm. Thus, we are not persuaded that Gibson's firearm license and the commonplace presence of firearms at the plant make Gibson's conduct innocent under these circumstances.