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IN THE CIRCUIT COURT OF       COUNTY, MISSISSIPPI       APPELLANT VS. CIVIL ACTION NO.       MISSISSIPPI EMPLOYMENT SECURITY COMMISSION AND       APPELLEE MEMORANDUM OPINION AND ORDER THIS DAY, this matter came on for hearing on appeal from a decision of the Board of Review, Mississippi Employment Security Commission awarding unemployment benefits to the Claimant, and the Court having reviewed the record of the proceedings below including the transcript of testimony and exhibits thereto, and having heard argument of counsel, and being otherwise fully advised in the premises finds that the decision of the Board of Review is against the weight of the clear and convincing evidence, contrary to law and should be reversed. FACTUAL AND PROCEDURAL HISTORY The claimant was employed for approximately nineteen years as an assembler at       . On             ,       the claimant's union declared a strike against       . Claimant joined in the strike as a Strike Captain and participated in a picket line at the plant's entrance for the days following the declaration of the strike. During the strike, several non - striking employees and visitors to the plant complained to       of damage to their automobiles. These individuals reported finding such problems as roofing tacks in their tires, broken windshields and cut tires. In order to monitor the picket line activities, management at       video - taped the strikers. One such videotape showed the claimant on two separate occasions bending down and making throwing motions with his hand toward the underside of automobiles and otherwise engaging in conduct consistent with throwing tacks under automobiles when they passed the plant entrance. Another videotape produced by a local television news crew depicted the claimant kicking or "kicking at" the fender of an automobile as it passed slowly through the picket line. Once the strike ended,       declined to continue an employment relationship with the Claimant, discharging him for misconduct. On             ,       , the Claimant filed an initial claim for benefits under the Mississippi Employment Security Law. The claim was received and in due course reviewed by the Claims Examiner. On             ,       , the Claims Examiner found that the claimant had, in fact, engaged in misconduct connected with the work and denied the claimant benefits pursuant to Section 71 - 5 - 513A(l) (b) of the Mississippi Code. Aggrieved by this, the Claimant filed a Notice of Appeal and secured a hearing before a Referee. On             ,       the Appeals Referee entered his decision in favor of the claimant, thereby reversing the prior ruling of the Claims Examiner.       then appealed to the Board of Review without success. The Board of Review adopted the Findings of Fact and Opinion of the Referee and affirmed his decision.       now presents this Petition to Appeal the Board of Review Decision and seeks denial of unemployment benefits to the claimant alleging that the actions of the claimant amount to disqualifying misconduct under Mississippi law. DISCUSSION It is well settled that an agency's findings may not be disturbed by appellate courts where, in the absence of fraud, the factual conclusions are supported by substantial evidence and the relevant law was properly applied to the facts. 1 This Court finds that the Findings of Fact as determined by the Appeals Referee are supported by the evidence and will not be disturbed. The remaining question then is whether the Referee and the Board of Review properly applied the law. Disqualifying misconduct has been defined by our Supreme Court as follows: "Conduct evincing such willful and wanton disregard of the employer's interest as is found in deliberate violations or disregard of standards of behavior which the employer has a right to expect from his employee. 2 1 MESC v. Lee, Sto So2d 1227 (Miss 1991); Shannon Ena. & Const v. MESC, 549 So2d 446, 449 (Miss 1989); MESC v. Pulnhus, 538 So2d 770, 772 (Miss 1989(; Wheeler v. Arriola, 408 So2d 1381, 1384 (Miss 1982); MESC v. Fortenberry, 193 So2d 142, 143 (Miss 1966). 2 Shannon Ena. & Const; MESC v. Borden. Inc., 451 So2d 222, 225 (Miss 1984); Wheeler Some examples of behavior found by our Supreme Court to constitute "misconduct" include sleeping on the job, 3 accepting personal long distance telephone calls, 4 losing one's driver's license for failure to carry insurance, 5 absenteeism due to alcohol abuse, 6 and non - payment of debts resulting in excessive garnishments to the employee's paycheck. 7 The Court has also denied benefits to employees who demonstrate a "temper" and " very aggressive and hostile nature in working with people" and those who "threaten" visitors and employees on the employer's premises. 8 In the instant case the employee,       was found by the Commission to have engaged in conduct during the course of a strike designed to dissuade employees and visitors from entering the employer's plant. The referee found as fact the following: In viewing the videotape, claimant does bend down and he made a motion as if to throw tacks. However, there is no visible evidence that claimant had tacks in his hand or that he threw tacks in the pathway of the vehicles. In the incident where claimant allegedly kicked the vehicle, the tape does show that claimant made a kicking motion at a passing vehicle. However, it is difficult to tell if claimant actually struck the vehicle with this motion. If claimant did, in fact, come in contact with the vehicle, the alleged kick was nothing more than a touch. There is no visible damage nor sound from the alleged kick. The referee went to find that the claimant was simply showing "dissatisfaction" with non - striking employees and otherwise engaging in ordinary picket - line activity. This finding is wholly inconsistent with the law of this state. Striking employees will not be denied benefits simply because they participated in the strike. 9 However, participation in a picket line is no license to harass, intimidate or threaten those who exercise their legal right to cross. The referee seems to place much sight on the fact that the proof is scant on the extent of the actual damage caused       . The referee's approach misses the mark. It is not the damage caused by the claimant's conduct, but the conduct itself that disqualifies him from receiving benefits. The claimant's actions were meant to be intimidating gestures and threats of property damage to non - striking fellow employees and visitors to the employer's plant. The actions were designed to interfere with and otherwise injure the business of the employer; or in the language 3 Ray v. Bivens, 562 So2d 119 (Miss 1992) 4 Pacavune v. MESC, 525 So2d 1330 (Miss 1988). 5 Richardson v. MESC, 593 So2d 31 (Miss 1992) 6 LESC v Martin, 568 So2d 725 (Miss 1990). 7 MESC v. Borden. Inc. 451 So2d 222 (Miss 1984). 8 Westbrook v. Greenville Council on Aging, 599 So2d 948 (Miss 1992); MESC v. Lee, 580 So2d 1227 (Miss 1991). 9 MESC v. Sanderson Plumbing Products. Inc., 604 So2d 215 (Miss 1992). of Wheeler, the conduct evinced a willful and wanton disregard of the employer's interest and a gross disregard for the standard of behavior that the employer had a right to