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SHANNON ENGINEERING & CONSTRUCTION, INC. v. MISSISSIPPI EMPLOYMENT SECURITY COMMISSION AND REGINALD BERRY

SEPTEMBER 13, 1989

SHANNON ENGINEERING & CONSTRUCTION, INC.
v.
MISSISSIPPI EMPLOYMENT SECURITY COMMISSION AND REGINALD BERRY



BEFORE DAN LEE, P.J., PRATHER AND ROBERTSON, JJ.

PRATHER, JUSTICE, FOR THE COURT:

I.

At issue in this appeal is whether the employer sustained its burden of proving that the employee was guilty of disqualifying" misconduct "constituting insubordination under the Mississippi Employment Security Commission Act. The decision of the Circuit Court of Humphreys County, Mississippi, affirmed the decision of the Board of Review [hereinafter Board] of the Mississippi Employment Security Commission [hereinafter MESC] reinstating unemployment benefits to Reginald Berry [hereinafter Berry].

 The employer, Shannon Engineering & Construction Company [hereinafter Shannon], presents the following issues for review:

 (A) Whether the Circuit Court of Humphreys County, Mississippi, erred in affirming the decision of the MESC Board of Review [hereinafter Board] which found that there is no evidence whatsoever to support the conclusion that Berry's actions constituted misconduct;

 (B) Whether" insubordination "is interpreted as constituting" misconduct "pursuant to Mississippi Code Annotated 71-5-513 (A(1) (b) (Supp. 1987);

 (C) Whether there was substantial evidence to support a finding that Berry willfully and knowingly failed to perform work assigned to him within his job classification;

 (D) Whether there was substantial evidence to support a finding that Berry knowingly or willfully failed to perform his work as instructed; and

 (E) Whether the findings of the Board are supported by substantial evidence.

 Issues" A, "" C, "" D "and" E "are virtually synonymous; therefore, for purposes of brevity and avoidance of undue repetition, these issues will be consolidated. Accordingly, these issues become: Whether the circuit court erred by affirming the Board's decision which held that Berry's actions did not constitute misconduct.

 II.

 The facts are disputed; nonetheless, the following was determined by the MESC Referee [hereinafter Referee] on January 30, 1987:

 [Berry] was employed 1 year and 11 months as a laborer at $4.10 an hour with Shannon . . . [of] Belzoni, Mississippi, ending October 23, 1986. He was discharged following a conversation with the [owner of Shannon] over his job title and job responsibilities within that job classification. [Berry] had been hired as a laborer, which required he perform any job assigned within his physical capabilities including working in the ditch with a pipe layer, when needed. [Shannon] contends that [Berry] vowed he would not work in the ditch anymore if he were not paid higher wages and would just take someone's job on the ground if he was to be paid the rate of a laborer. [Berry] denies that he refused to work in the ditch as he had done in the past. He alleges that he was discharged because he refused to sign a paper required by the Labor Department which he allegedly was not going to be allowed to read. [Shannon] admits asking [Berry] to sign a peice (sic) of paper and refusing to let him remove it from the premises. He denies putting any pressure on [Berry] to sign, as it did not make any difference and would go into the file. [Shannon] contends that the sole reason for the termination was the stated intention not to perform job assignments he had done in the past because he was doing the work of a pipe layer and paid at the rate of a laborer.

 The paper which Shannon wanted Berry to sign concerned an earlier investigation by the Labor Department. During the investigation, Berry had informed the ...


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