          IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA


                                 September 2014 Term              FILED
                                                              October 23, 2014
                                                                released at 3:00 p.m.
                                                                RORY L. PERRY II, CLERK
                                     No. 13-1080              SUPREME COURT OF APPEALS
                                                                  OF WEST VIRGINIA




               ALCAN ROLLED PRODUCTS RAVENSWOOD, LLC,
                        Respondent Below, Petitioner

                                           v.

                               TERRY W. MCCARTHY,
                              Petitioner Below, Respondent



                  Appeal from the Circuit Court of Kanawha County

                         Honorable Tod J. Kaufman, Judge

                            Civil Action No. 13-AA-73


                             REVERSED AND REMANDED




                             Submitted: September 16, 2014

                                Filed: October 23, 2014




Ancil G. Ramey, Esq.                                 Thomas P. Maroney, Esq.
Nora Clevenger Price, Esq.                           Patrick K. Maroney, Esq.
Steptoe & Johnson PLLC                               Maroney, Williams, Weaver &
Huntington, West Virginia                            Pancake, PLLC
Attorneys for Petitioner                             Charleston, West Virginia
                                                     Attorneys for Respondent


JUSTICE LOUGHRY delivered the Opinion of the Court.
                              SYLLABUS BY THE COURT




              1. “The findings of fact of the Board of Review of the West Virginia

Department of Employment Security [now known as Workforce West Virginia] are entitled

to substantial deference unless a reviewing court believes the findings are clearly wrong. If

the question on review is one purely of law, no deference is given and the standard of judicial

review by the court is de novo.” Syl. Pt. 3, Adkins v. Gatson, 192 W.Va. 561, 453 S.E.2d 395

(1994).



              2. “For purposes of determining the level of disqualification for unemployment

compensation benefits under West Virginia Code § 21A-6-3, an act of misconduct shall be

considered gross misconduct where the underlying misconduct consists of (1) willful

destruction of the employer’s property; (2) assault upon the employer or another employee

in certain circumstances; (3) certain instances of use of alcohol or controlled substances as

delineated in West Virginia Code § 21A-6-3; (4) arson, theft, larceny, fraud, or

embezzlement in connection with employment; or (5) any other gross misconduct which

shall include but not be limited to instances where the employee has received prior written

notice that his continued acts of misconduct may result in termination of employment.” Syl.

Pt. 4, in part, Dailey v. Bd. of Review, W.Va. Bureau of Emp’t Programs, 214 W.Va. 419,

589 S.E.2d 797 (2003).




                                               i
              3. “Except where an employee has received a prior written warning, the

phrase, ‘other gross misconduct,’ in West Virginia Code § 21A-6-3(2) evidences the

legislature’s intent to provide some element of discretion in the Board and reviewing courts,

based upon the peculiar facts of each case.” Syl. Pt. 5, Dailey v. Bd. of Review, W.Va.

Bureau of Emp’t Programs, 214 W.Va. 419, 589 S.E.2d 797 (2003).



              4. “Where the catch-all provision of ‘other gross misconduct’ in West Virginia

Code § 21A-6-3(2) is utilized as a basis for denial of all unemployment compensation

benefits in the absence of a qualifying prior written warning, the employer is required to

furnish evidence that the act in question rises to a level of seriousness equal to or exceeding

that of the other specifically enumerated items, and a resolution of matters brought under this

subdivision must be analyzed on a case-by-case basis.” Syl. Pt. 6, Dailey v. Bd. of Review,

W.Va. Bureau of Emp’t Programs, 214 W.Va. 419, 589 S.E.2d 797 (2003).



              5. Not every terminated employee is qualified to receive unemployment

compensation benefits.     An employee discharged for simple misconduct is partially

disqualified from receiving such benefits, whereas an employee terminated for gross

misconduct is wholly disqualified.




                                              ii
LOUGHRY, Justice:



              The petitioner, Alcan Rolled Products Ravenswood, LLC (“Alcan”),1 appeals

the Circuit Court of Kanawha County’s order entered September 10, 2013, reversing the

decision of Workforce West Virginia’s Board of Review (“Board”). The Board affirmed the

decision of a Workforce West Virginia administrative law judge (“ALJ”), who denied

unemployment benefits to Alcan’s former employee, the respondent, Terry McCarthy (“Mr.

McCarthy”), upon finding he had been discharged for gross misconduct. Concluding that

the findings of fact of the ALJ, as adopted by the Board, were clearly wrong, the circuit court

entered an order reversing the decision of Workforce West Virginia and ruling that Mr.

McCarthy was entitled to unemployment compensation benefits. Alcan challenges the circuit

court’s order, asserting that the court failed to give proper deference to the findings of fact

of the ALJ; substituted its findings of fact for those of the ALJ and the Board; and erred by

ruling that Mr. McCarthy’s actions did not constitute “gross misconduct.” Upon our careful

consideration of the record in this matter, the briefs and arguments of the parties, the

applicable legal authority, the appropriate standard of review, and for the reasons discussed

below, we reverse the circuit court’s final order and remand this action to the circuit court




       1
       The record reflects that during the proceedings below, Alcan was known as
Constellium Rolled Products Ravenswood, LLC. On appeal, the petitioner refers to itself as
Alcan.

                                              1

with directions to reinstate the Workforce West Virginia decision finding Mr. McCarthy

ineligible for unemployment compensation benefits.



                           I. Factual and Procedural Background

                 On or about October 5, 2012, Mr. McCarthy2 was discharged from employment

with Alcan for picket line violence. The misconduct occurred on August 7, 2012, during a

labor strike by Alcan’s hourly workforce. Supervisory employees traveling in a four-vehicle

convoy observed Mr. McCarthy throwing a “jack rock”3 from a picket line into their lane of

travel at the south “Y” intersection leading to Alcan’s facility in Ravenswood, West Virginia.



                 Following his termination, Mr. McCarthy filed a claim for unemployment

compensation benefits with the Division of Unemployment Compensation of Workforce

West Virginia. He was denied benefits at all three levels of the administrative process based

on the recurrent finding that Mr. McCarthy’s actions, which led to his discharge from

employment with Alcan, constituted gross misconduct.




       2
           At the time of his discharge, Mr. McCarthy had worked for Alcan for eighteen years.
       3
       “‘Jack rocks’ are sharpened, bent nails welded together such that one always points
upward when the object is at rest. They are designed to damage tires.” U.S. v. Lambert, 994
F.2d 1088, 1090 n.1 (4th Cir. 1993).

                                                2

              On October 25, 2012, the Workforce West Virginia deputy entered his decision

finding that Mr. McCarthy was disqualified from receiving benefits.4 The deputy based his

decision upon Alcan’s evidence that Mr. McCarthy threw a jack rock at an employee’s

vehicle, which the deputy found was gross misconduct. Mr. McCarthy requested an appeal

of the deputy’s decision, and an evidentiary hearing was held before the ALJ on December

21, 2012.5



              During this evidentiary hearing, Mr. McCarthy testified that he did not throw

the jack rock and that while he heard and saw jack rocks hit the road that morning, he did not

see who threw them. Mr. McCarthy presented the testimony of a co-worker, Ed Nunn, who

testified that he was with Mr. McCarthy on the picket line “most of the time;” that he did not

see Mr. McCarthy throw a jack rock; and that he saw “a jack rock or two” in the roadway

that day, but did not know who threw them. Mr. McCarthy also called Luke Staskal as a

witness. Mr. Staskal, Alcan’s Human Resource Business Partner, testified and confirmed

that videos were taken of jack rocks in the roadway that day by the security company



       4
        West Virginia Code § 21A-2-13 (2013) provides that “[f]or the original determination
of claims under this chapter, the commissioner shall appoint a necessary number of deputies
as his or her representatives.” See also W.Va. Code § 21A-7-3 (2013) (“The commissioner
shall appoint deputies to investigate all claims, and to hear and initially determine all claims
for benefits . . . .”); W.Va. Code § 21A-7-4(a) (2013) (“A deputy shall promptly investigate
all claims.”).
       5
        During this evidentiary hearing, both Mr. McCarthy and Alcan were represented by
legal counsel.

                                               3

employed by Alcan, but that he did not know where those videos were located. The

transcript of this evidentiary hearing reflects that Mr. Staskal was never asked whether there

were videos showing the specific incident involving Mr. McCarthy.



              During this same evidentiary hearing, Alcan presented the testimony of several

witnesses, including Tom Slone, Alcan’s Manager of Environmental Health Services and

Security, who investigated the incident. Mr. Slone explained that the Alcan management

personnel immediately reported the incident involving Mr. McCarthy upon arriving at the

Alcan plant the morning of August 7, 2012. While there were several incidents of picket line

violence reported that day, Mr. Slone testified that he was personally charged with

documenting this particular incident the morning it occurred. Mr. Slone authenticated his

incident report, which contained his summary of the incident as described by William

(Rocky) Elkins, the management employee who was driving the first vehicle in the convoy:

“Turned off Rt. 2 onto the north branch of the South Y (access) to Century Road [and]

observed [Mr.] McCarthy throw an object toward his vehicle, believed to be a jack rock.”

Mr. Slone explained that his incident report also contained signed statements from David

Johnson and Jeff Wamsley, management employees who occupied the second vehicle in the

convoy that morning. Mr. Wamsley’s signed statement reflects that he “observed [Mr.]

McCarthy toss a jack rock at Rocky’s [Elkins’s] back tire. I saw the jack rock bounce toward




                                              4

the back tire. There is no question that this was a jack rock.”6 Similarly, Mr. Johnson’s

signed statement indicates that he “witnessed [Mr.] McCarthy toss a jack rock at Rocky’s

[Elkins’s] vehicle. I confirm that this was a jack rock.” Mr. Slone’s incident report, as well

as Alcan’s Rules of Conduct7 for the facility, were admitted into evidence by the ALJ.



              In addition to their written statements, Mr. Elkins and Mr. Johnson were called

as witnesses by Alcan during the administrative hearing. Mr. Elkins testified that he was

driving the lead vehicle in the four-vehicle convoy carrying management employees to the

Alcan plant for the first time since the labor strike began. He explained that as he was

driving past the picket line, he saw Mr. McCarthy, whom he recognized from work, “stoop[]

down and ma[k]e a . . . bowling motion with his arm[,]” although he did not see anything

come out of Mr. McCarthy’s hand. Mr. Elkins also testified that once Mr. Johnson and Mr.

Wamsley arrived at the plant, he told them that Mr. McCarthy was “messing” with him by

making the tossing motion at which time Mr. Johnson and Mr. Wamsley told him that Mr.

McCarthy was not “acting” but had actually tossed a jack rock into the roadway.



       6
        Mr. Wamsley’s written statement was admitted into evidence as part of the incident
report prepared by Mr. Slone. Mr. Wamsley did not testify at this hearing.
       7
        Alcan’s Rules of Conduct provide, in part: “Misconduct not specifically described
in these guidelines will be handled as warranted by the circumstances of the case involved.
Penalties imposed as a result of infractions of the rules may be modified by the Company
when extenuating circumstances are found.” Mr. Slone testified that these were extenuating
circumstances because “[i]n a strike[,] the picketers are . . . causing harassment or damage
to salary [sic] personnel.”

                                              5

              During Mr. Johnson’s testimony, he confirmed his written statement contained

in the incident report, which he explained was given to Mr. Slone within thirty minutes of

arriving at the plant that day. According to Mr. Johnson, he was a passenger in the vehicle

being driven by Mr. Wamsley and, as the vehicle slowed to make the sharp curve at the Y

intersection, he saw Mr. McCarthy toss a jack rock into the roadway from the picket line.

Mr. Johnson testified that the jack rock bounced on the road between the Elkins and

Wamsley vehicles and that Mr. Wamsley “swerved over” to navigate around the jack rock.8

When asked how many other strikers were standing with Mr. McCarthy on the picket line

that morning, Mr. Johnson responded, “five to six.”9



              On January 13, 2013, the ALJ entered his decision affirming the deputy’s

decision and finding that Mr. McCarthy had been discharged by Alcan for gross misconduct,

which disqualified him from receiving unemployment compensation benefits. The ALJ

found, inter alia, as follows:

              4. There was a strike at the employer premises beginning
              August 5, 2012, due to a labor dispute.

              5. On August 7, 2012, the claimant was manning the picket line
              at the South Y Entrance. The claimant [Mr. McCarthy] threw


       8
       Mr. Johnson acknowledged during his testimony that he did not indicate in his signed
statement that he saw the jack rock bounce.
       9
        Although Mr. McCarthy testified that there were twenty to twenty-five employees
picketing that morning, the record reflects that there were picketers on both sides of the Y
intersection on the morning in question.

                                             6

                a jack rock beneath and toward a vehicle entering the employer
                facility.

                6. There were four vehicles in a convoy transporting supervisor
                personnel to work at the plant during the strike. The claimant
                [Mr. McCarthy] threw a jack rock into the roadway as the first
                vehicle drove pass [sic] the South Y Intersection. The driver of
                the second vehicle swerved to avoid the jack rock in the
                roadway. The passenger in the second vehicle observed the
                claimant throw the jack rock into the roadway as the first car
                traveled past the claimant [Mr. McCarthy].

Based upon these factual findings, the ALJ concluded that Mr. McCarthy’s attempt to

damage property was work related as he was “attempting to discourage supervisors from

traveling to work during the strike.” The ALJ further found that Mr. McCarthy’s attempt to

damage property was in violation of the employer’s policy and was a “deliberate disregard

of the employer’s interest and constitutes gross misconduct.”



                Mr. McCarthy appealed the ALJ’s decision to the Board, which held a hearing

on March 20, 2013.10 In its decision dated May 23, 2013, the Board adopted the ALJ’s

findings of fact in their entirety and affirmed the ALJ’s decision that Mr. McCarthy was

discharged for an act of gross misconduct disqualifying him from unemployment benefits.

Thereafter, Mr. McCarthy appealed the Board’s decision to the Circuit Court of Kanawha

County.




      10
           The hearing before the Board is not an evidentiary hearing.

                                               7

                 On September 20, 2013, the circuit court, having reviewed the administrative

record from Workforce West Virginia, as well as the parties’ respective memoranda of law,

entered an order expressing its opinion that the ALJ’s findings of fact, as adopted by the

Board, were clearly wrong in view of the evidence on the whole record. The circuit court

found that Mr. Elkins, the driver of the first vehicle, did not observe anything come out of

Mr. McCarthy’s hand as he made a tossing motion; that Mr. Johnson’s testimony conflicted

with that of Mr. Elkins, who was in a better position to observe Mr. McCarthy; and that Mr.

Johnson’s view of Mr. McCarthy would have been blocked by the Elkins vehicle. The

circuit court further found Mr. Johnson’s testimony that the jack rock was thrown on the

roadway between the Elkins and Wamsley vehicles was inconsistent with his written

statement that he saw Mr. McCarthy throw the jack rock at the Elkins vehicle.11



                 Turning to Mr. McCarthy’s evidence, the circuit court found that Mr.

McCarthy denied throwing the jack rock and that his co-worker, Mr. Nunn, testified that he

did not see Mr. McCarthy throw a jack rock. Regarding Mr. Staskal’s testimony confirming


       11
            Mr. Johnson was questioned, in part, by Mr. McCarthy’s counsel, as follows:

                 Q. Now, you’ve indicated that the jock [sic] rock that you say
                 was thrown was between the Wamsley car and the Elkins’ car;
                 is that correct?
                 A. Yes.
                 Q. So the jack rock that you’re saying that you saw was not
                 thrown at the Elkins’ car but was thrown at the Wamsley car?
                 A. I can’t answer that. . . . All I know is it was - I seen it hit the
                 road.

                                                   8

the existence of videos showing jack rocks in the road on the day of the incident in question,

the circuit court concluded that Alcan’s failure to present any video evidence or to call Mr.

Wamsley as a witness during the evidentiary hearing “[gave] rise to the legal principal [sic]

that if called, the testimony of Wamsley would have been adverse to [Alcan][.]”12



                 The circuit court further found that the “alleged act” did not take place during

the course of Mr. McCarthy’s work hours nor on company property and did not result in

damage to company property. The circuit court concluded that “[i]f Mr. McCarthy [were]

guilty of any act, it would be littering of a public road which is not an act of gross

misconduct.”



                 Based on its findings of fact, the circuit court ruled that the “alleged

misconduct” did not fall within the definition of “gross misconduct” as defined in West

Virginia Code § 21A-6-3 and Dailey v. Board of Review, 214 W.Va. 419, 589 S.E.2d 797

(2003).13 The circuit court found that the employer’s evidence was “at best . . . contradictory

and . . . [did] not rise even to the level of meeting the employer’s burden of preponderance




       12
            See infra note 20.
       13
         The circuit court stated: “The Supreme Court in Dailey is specifically holding that
acts which occur off company premises and not on company time are not disqualifying acts
under West Virginia Code § 21A-6-3.” As more fully explained, infra, we disagree with the
circuit court’s conclusion in this regard.

                                                 9
of the evidence test, and falls far short of clear and convincing evidence.”14 Reversing the

decision of Workforce West Virginia, the circuit court ruled that Mr. McCarthy is entitled

to unemployment compensation benefits.15 It is from this order that Alcan appeals.



                                  II. Standard of Review

               In reviewing the decision of Workforce West Virginia’s Board and ALJ, we

apply the same standard of review that was to be applied by the circuit court:

                      The findings of fact of the Board of Review of the West
              Virginia Department of Employment Security [now known as
              Workforce West Virginia]16 are entitled to substantial deference
              unless a reviewing court believes the findings are clearly wrong.
              If the question on review is one purely of law, no deference is
              given and the standard of judicial review by the court is de novo.




       14
         The circuit court’s order refers to clear and convincing evidence as the employer’s
evidentiary burden and notes that an employee’s right to earn a living is a property right. The
circuit court cites as authority Brown v. Gobble, 195 W.Va. 559, 466 S.E.2d 402 (1996),
wherein we adopted a clear and convincing standard of proof for civil cases involving
adverse possession of real property. Obviously, the case at bar does not involve the adverse
possession of real estate. Moreover, the employer’s burden of proof in this instance was by
a preponderance of the evidence, as discussed infra.
       15
          The circuit court also found that an employee has an “important property right” of
working at a job “without fear of infliction of economic capital punishment where the worker
has the right to strike, yet is discharged on weak, inconsistent and uncorroborated testimony.”
However, Mr. McCarthy was not discharged for participating in a labor strike. The issue is
whether Workforce West Virginia was correct in ruling that Mr. McCarthy was disqualified
from receiving unemployment compensation benefits based on its finding that he was
discharged for gross misconduct.
       16
        Workforce West Virginia was previously known as the Bureau of Employment
Security. See W.Va. Code § 21A-l-4 (2013).

                                              10
Syl. Pt. 3, Adkins v. Gatson, 192 W.Va. 561, 453 S.E.2d 395 (1994) (footnote added.).

Accordingly, we examine the factual determination that Mr. McCarthy threw a jack rock

from a picket line and into the path of moving vehicles transporting management employees

to work under a clearly erroneous standard, and we examine the legal determination that such

action constitutes gross misconduct under a de novo standard. We proceed to address the

parties’ arguments with these standards in mind.17



                                       III. Discussion

                             A. The ALJ’s Factual Findings

              We first address whether the findings of fact reached by the ALJ are clearly

erroneous. Alcan maintains that the circuit court failed to give the requisite deference to the

administrative tribunal’s findings and, instead, substituted its own findings of fact for those

of the ALJ and the Board. Conversely, Mr. McCarthy asserts that the circuit court’s decision

was correct because Alcan failed to meet its burden of proving, by a preponderance of the




       17
        The provisions of Article 5, Chapter 29A of the West Virginia Code, which is
addressed to contested cases under the State Administrative Procedures Act [§§ 20A-1-1 to
29A-7-4 (2012 & Supp. 2014)], do not apply to Workforce West Virginia. See W.Va. Code
§ 29A-5-5 (“The provisions of this article shall not apply to . . . the Bureau of Employment
Programs [now known as Workforce West Virginia] [.]”). Therefore, we apply the standard
of review specific to unemployment compensation cases.

                                              11

evidence, that Mr. McCarthy’s conduct disqualified him from receiving unemployment

compensation benefits.18



              As previously discussed, Alcan’s evidence included the incident report

prepared by Mr. Slone, who was charged with documenting the incident that was reported

soon after the supervisory employees, Mr. Elkins, Mr. Johnson and Mr. Wamsley, arrived

at the Alcan plant on the morning in question. The signed statements of Mr. Wamsley and

Mr. Johnson, as contained in the incident report, reflect that Mr. McCarthy was observed

throwing a jack rock towards the Elkins vehicle. While Mr. Elkins testified that he did not

see anything come out of Mr. McCarthy’s hand, he confirmed that he saw Mr. McCarthy

stoop and make a motion like he was tossing something towards the vehicle he was driving.

Moreover, Mr. Johnson testified that he saw Mr. McCarthy throw the jack rock and that Mr.

Wamsley, the driver of the second vehicle in the convoy in which Mr. Johnson was a

passenger, swerved to miss hitting the jack rock. Mr. Johnson further testified that he had


       18
           Alcan assigns as error the circuit court’s finding that Alcan’s evidence was “at best
. . . contradictory and confusing and does not rise even to the level of meeting the employer’s
burden of preponderance of the evidence test, and falls far short of clear and convincing
evidence.” Alcan argues that this statement demonstrates the circuit court erroneously
applied a clear and convincing evidence standard to Alcan’s burden of proof. As we have
previously explained, “‘the burden of persuasion is upon the former employer to demonstrate
by the preponderance of the evidence that the claimant’s conduct falls within a disqualifying
provision of the unemployment compensation statute.’ Peery [v. Rutledge], 177 W.Va. at
552, 355 S.E.2d at 45 (internal citations omitted).” Herbert J. Thomas Mem. Hosp. v. Bd.
of Review of WV Bureau of Emp’t Programs, 218 W.Va. 29, 32, 620 S.E.2d 169, 172 (2005).
The circuit court’s secondary reference to a clear and convincing evidentiary burden, while
erroneous, is mooted by our decision herein.

                                              12

no trouble seeing Mr. McCarthy, who was one of five to six employees on the picket line.19

While Mr. McCarthy denied throwing the jack rock, and Mr. Nunn testified that he did not

see Mr. McCarthy throw the jack rock, Mr. Nunn also conceded that he was not beside Mr.

McCarthy all of the time—just “most of the time.”



                 Based upon our review of the record, we find that the evidence was more than

sufficient for the ALJ to find that there were four vehicles in a convoy transporting

supervisory personnel to work at the Alcan plant during the labor strike; that Mr. McCarthy

threw a jack rock onto the roadway as the first vehicle drove past the picket line; that the

driver of the second vehicle swerved to avoid the jack rock in the roadway; and that the

passenger in the second vehicle observed Mr. McCarthy throw the jack rock into the roadway

as the first car traveled past Mr. McCarthy. While there was conflicting evidence presented

during the evidentiary hearing, the ALJ was present to assess the demeanor and credibility

of witnesses, which assessment is entitled to deference:

                 [T]he ALJ was in the best position to evaluate the demeanor and
                 credibility of each witness which testified on the issue.

                 ****

                         The standard of review used by this Court on a question
                 of fact resolved by an ALJ is necessarily one of deference. We
                 have consistently held that “[a] reviewing court cannot assess
                 witness credibility through a record. The trier of fact is uniquely
                 situated to make such determinations and this Court is not in a


       19
            See supra note 9.

                                                 13

              position to, and will not, second guess such determinations.”
              “Further, the ALJ’s credibility determinations are binding unless
              patently without basis in the record.” See also State v. Miller,
              197 W.Va. 588, 606, 476 S.E.2d 535, 553 (1996) (“The trial
              court is in the best position to judge the sincerity of a [witness];
              therefore, its assessment is entitled to great weight.”); State v.
              Phillips, 194 W.Va. 569, 590, 461 S.E.2d 75, 96 (1995)
              (“Giving deference to the trial court’s determination, because it
              was able to observe the [witnesses’] demeanor and assess their
              credibility”).

Patton v. Gatson, 207 W.Va. 168, 173-74, 530 S.E.2d 167, 172-73 (1999) (Davis, J.,

concurring) (internal citations omitted); see also Bd. of Educ. v. Wirt, 192 W.Va. 538, 579,

453 S.E.2d 402, 413 (1994) (“[W]e must afford the lower tribunal’s findings great weight

. . . because the factual determinations largely are based on witness credibility. Upon

reviewing the evidence in its entirety, we conclude that the ALJ’s findings of fact were based

on a plausible view of the evidence. The ALJ conducted the hearing and observed the

witnesses firsthand, so he was in the best position to make credibility determinations.”).



              In addition to affording deference to the ALJ on credibility determinations, a

reviewing court is not permitted to decide the factual issues de novo or to reverse an ALJ’s

decision simply because it would have weighed the evidence differently. As we explained

in Wirt,

              “‘[i]n applying the clearly erroneous standard to the findings of
              a [lower tribunal] sitting without a jury, appellate courts must
              constantly have in mind that their function is not to decide
              factual issues de novo.’” Indeed, if the lower tribunal’s
              conclusion is plausible when viewing the evidence in its
              entirety, the appellate court may not reverse even if it would

                                              14

              have weighed the evidence differently if it had been the trier of
              fact.

Wirt, 192 W.Va. at 578-79, 453 S.E.2d at 412-13 (footnote omitted) (internal citations

omitted).



              Accordingly, based upon this Court’s review of the evidence, we conclude that

the ALJ’s findings of fact, as upheld by the Board, are not clearly erroneous, and that the

circuit court committed reversible error by substituting its findings of fact for those of the

ALJ.20




         20
         The circuit court also found that if Alcan possessed a video depicting “Mr. McCarthy
making any motion or throwing jack rocks,” Alcan would have produced it. Because Alcan
did not produce the video, the circuit court concluded that had Alcan called Mr. Wamsley
as a witness, his testimony would have been adverse to Alcan. We first observe that Mr.
Wamsley’s written statement was admitted into evidence as part of the incident report
prepared by Mr. Slone. See McGlone v. Superior Trucking Co., Inc., 178 W.Va. 659, 664­
65, 363 S.E.2d 736, 741-42 (1987) (internal citations omitted) (“There is no presumption
where there is already sufficient evidence so that [ ] [the] omitted [evidence] would be
merely corroborative[.]”). Second, if Mr. McCarthy needed Mr. Wamsley’s testimony, he
could have obtained a subpoena from the Board to secure Mr. Wamsley’s attendance at the
hearing. See W. Va. Code §§ 21A-2-21; 21A-4-11. Third, the very foundation of the circuit
court’s cumulative reasoning, i.e., that Alcan would have introduced the video had it shown
Mr. McCarthy throwing a jack rock, is erroneous. There was no testimony at the evidentiary
hearing that there was a video that showed a jack rock being thrown in the direction of the
Elkins vehicle on the morning in question. The extent of Mr. Staskal’s very brief testimony
was that he was aware of a video that showed that there were jack rocks in the roadway. In
short, there was simply no basis for the circuit court’s findings and conclusions in this regard.

                                               15

                     B. The ALJ’s Finding of Gross Misconduct

              The ALJ determined that Mr. McCarthy’s effort to damage property was work

related as it was an attempt to discourage supervisors from traveling to work during the labor

strike, a violation of his employer’s policy, and a deliberate disregard of the employer’s

interest, all of which constituted gross misconduct. Alcan specifically disputes the circuit

court’s finding that throwing a jack rock at a vehicle while not on company time and not on

company property fails to qualify as gross misconduct. Mr. McCarthy argues that we need

not reach the issue of what constitutes gross misconduct because the circuit court correctly

found that the ALJ’s factual findings were clearly wrong. Having determined that the ALJ’s

factual findings were not clearly wrong, we examine what constitutes “gross misconduct”

for purposes of unemployment compensation.



              The Legislature has expressly stated that an employee is wholly disqualified

from receiving unemployment compensation benefits if he or she has been discharged for

“gross misconduct,” which it defines as the

              willful destruction of his or her employer’s property; assault
              upon the person of his or her employer or any employee of his
              or her employer; if the assault is committed at the individual’s
              place of employment or in the course of employment; reporting
              to work in an intoxicated condition, or being intoxicated while
              at work; reporting to work under the influence of any controlled
              substance . . . without a valid prescription, or being under the
              influence of any controlled substance . . . without a valid
              prescription, while at work; adulterating or otherwise
              manipulating a sample or specimen in order to thwart a drug or
              alcohol test lawfully required of an employee; refusal to submit

                                              16

              to random testing for alcohol or illegal controlled substances for
              employees in safety sensitive positions . . . ; arson, theft,
              larceny, fraud or embezzlement in connection with his or her
              work; or any other gross misconduct . . . Provided, That for the
              purpose of this subdivision, the words “any other gross
              misconduct” includes, but is not limited to, any act or acts of
              misconduct where the individual has received prior written
              warning that termination of employment may result from the act
              or acts.

W.Va. Code § 21A-6-3(2) (2013). In Dailey, 214 W.Va. 419, 589 S.E.2d 797, this Court

explained that its purpose was “to fashion a workable differentiation between simple

misconduct and gross misconduct,” and it set forth the following definition for gross

misconduct, which generally tracks the statutory definition set forth above:

                     For purposes of determining the level of disqualification
              for unemployment compensation benefits under West Virginia
              Code § 21A-6-3, an act of misconduct shall be considered gross
              misconduct where the underlying misconduct consists of (1)
              willful destruction of the employer’s property; (2) assault upon
              the employer or another employee in certain circumstances; (3)
              certain instances of use of alcohol or controlled substances as
              delineated in West Virginia Code § 21A-6-3; (4) arson, theft,
              larceny, fraud, or embezzlement in connection with
              employment; or (5) any other gross misconduct which shall
              include but not be limited to instances where the employee has
              received prior written notice that his continued acts of
              misconduct may result in termination of employment.

Dailey, 214 W.Va. at 421, 589 S.E.2d at 799, syl. pt. 4, in part.



              Upon adopting this definition of gross misconduct, the Court proceeded to

explain that “[t]o the extent UB Services [v. Gatson, 207 W.Va. 365, 532 S.E.2d 365 (2000)]

implemented a definition for gross misconduct inconsistent with the foregoing, it is expressly

                                             17

overruled.” Dailey, 214 W.Va. at 427, 589 S.E.2d at 805. Elevating this language in Dailey

to mean that off-duty conduct can never constitute gross misconduct,21 the circuit court ruled

that throwing a jack rock while not on company time or premises does not fall within the

definition of gross misconduct.



              Critical to this case is recognition that this Court in Dailey did not hold that off

premises misconduct could never be so egregious as to constitute gross misconduct. In fact,

as we explained,

              we believe that the legislature’s provisions regarding gross
              misconduct can be divided into three distinct categories: (1)
              those specifically enumerated acts which shall be considered
              gross misconduct; (2) items which may be interpreted to be
              “other gross misconduct;” and (3) acts of misconduct for which
              the employee has received prior written warning that continued
              violation will result in employment termination.

Dailey, 214 W.Va. at 427, 589 S.E.2d at 805. Being aware that the statutory definition could

not possibly set forth every conceivable act of gross misconduct, we concluded that “[e]xcept

where an employee has received a prior written warning, the phrase, ‘other gross

misconduct,’ in West Virginia Code § 21A-6-3 evidences the legislature’s intent to provide

some element of discretion in the Board and reviewing courts, based upon the peculiar facts




       21
         In UB Services, an employee, while off-duty and removed from the employer’s
premises, brutally beat a coworker, breaking her pelvis and hip and caused her to be off work
for six months due to her resultant injuries.

                                               18

of each case.” Dailey, 214 W.Va. at 421, 589 S.E.2d at 799, syl. pt. 5 (emphasis added).

In exercising such discretion, we cautioned that

                     [w]here the catch-all provision of “other gross
              misconduct” in West Virginia Code § 21A-6-3 is utilized as a
              basis for denial of all unemployment compensation benefits in
              the absence of a qualifying prior written warning, the employer
              is required to furnish evidence that the act in question rises to a
              level of seriousness equal to or exceeding that of the other
              specifically enumerated items, and a resolution of matters
              brought under this subdivision must be analyzed on a
              case-by-case basis.

Dailey, 214 W.Va. at 421, 589 S.E.2d at 799, syl. pt. 6. Rather than foreclosing the

possibility that off-duty misconduct can constitute gross misconduct, Dailey instructs that we

must evaluate the peculiar facts of a given case to determine whether an employee’s action

“rises to a level of seriousness equal to or exceeding that of the other specifically enumerated

items” constituting gross misconduct. Id.



              The ALJ concluded that Mr. McCarthy’s attempt to damage property

constituted gross misconduct. This conclusion appears to be based on the statutory definition

of “gross misconduct” that includes the “willful destruction” of the employer’s property. It

is undisputed, however, that none of the vehicles in the four-vehicle convoy were damaged

by the jack rock thrown into the roadway by Mr. McCarthy.22 Therefore, instead of relying



       22
        It is unclear from the evidence in the record whether the subject vehicles were owned
by Alcan. Assuming they were, the fact remains that none of the vehicles were damaged by
Mr. McCarthy’s actions.

                                              19
on the issue of property damage, we turn to the “other gross misconduct” provision in West

Virginia Code § 21A-6-3(2).23



              As indicated above, the “other gross misconduct” provision gives reviewing

courts discretion “based upon the peculiar facts of each case.” Dailey, 214 W.Va. at 427,

589 S.E.2d at 805. Accordingly, Alcan’s evidence of Mr. McCarthy’s misconduct needed

to “rise[] to a level of seriousness equal to or exceeding that of the other specifically

enumerated items[.]” Id. Although the circuit court did not believe that throwing a jack rock

into the path of moving vehicles was serious, stating that if Mr. McCarthy were “guilty of

any act, it would be littering of a public road[,]” we strenuously disagree.




       23
         In U.S. Steel Mining Company, LLC v. Helton, 219 W.Va. 1, 631 S.E.2d 559 (2005),
cert. denied, 547 U.S. 1179 (2006), we explained that

                     [d]e novo review on appeal means that the result
                     and not the language used in or reasoning of the
                     lower tribunal’s decision, is at issue. A reviewing
                     court may affirm a lower tribunal’s decision on
                     any grounds. See GTE South, Inc. v. Morrison,
                     199 F.3d 733, 742 (4th Cir.1999) (“if the
                     administrative order reaches the correct result and
                     can be sustained as a matter of law, we may
                     affirm on the legal ground even though the
                     agency relied on a different rationale”).

U.S. Steel, 219 W.Va. at 3 n.3, 631 S.E.2d at 561 n.3.


                                             20
              While this Court has not previously addressed whether the utilization of a jack

rock in the manner employed by Mr. McCarthy rises to the level of “other gross

misconduct,” other courts have ruled that throwing a jack rock towards moving vehicles is

“a violent act which could have resulted in the death or injury of the occupants of the . . .

vehicles[.]” NSA v. United Steelworkers of America, AFL-CIO, Cases 26-CA-18725, 2000

WL 33665521 (N.L.R.B. Div. of Judges); see also Ramar Coal Co., Inc. v. Int’l Union,

United Mine Workers of Am., 814 F.Supp. 502 (W.D.Va. 1993) (describing picket line

violence as including tires being flattened by jack rocks); Virginia Mfg. Co., Inc. v. N.L.R.B.,

Nos. 93-1824 & 93-1955, 27 F.3d 565, at *2 n.6 (Table) (4th Cir. June 29, 1994) (“serious

strike misconduct” described as including “rock throwing, threats of physical harm, and

attempted vandalism with ‘jack rocks’.”); U.S. v. Lambert, 994 F.2d 1088 (4th Cir. 1993)

(addressing sentencing of twenty-seven year employee of Greyhound Bus Lines convicted

of attempting to damage and disable motor vehicle with reckless disregard for human life

where employee was found hiding under highway bridge with jack rocks in his possession

during strike against his employer bus line).



              Upon consideration of the particular facts of this case, we conclude that Mr.

McCarthy’s act of throwing a jack rock into the path of moving vehicles, as determined by

the ALJ, rises to the level of seriousness equal to or exceeding those specifically enumerated

acts constituting gross misconduct. W.Va. Code § 21A-6-3(2); Dailey, 214 W.Va. at 421,

589 S.E.2d at 799, syl. pt. 4, in part. Even if Mr. McCarthy’s intent was to simply discourage

                                                21

supervisory employees from traveling to work during the labor strike, his actions were

potentially deadly. Had the targeted vehicle hit the jack rock and resulted in a tire blowout,

such event could have caused the vehicles in the convoy to wreck as they traveled seriatim.

Further, a tire blowout could have caused the driver to lose control of his vehicle and, in turn,

potentially caused serious injury either to himself, to the other employees on the picket line

that day, or both. The fact that Mr. McCarthy’s coworkers were spared from serious injury

does not diminish the gravity of his actions. The misconduct at issue in this case is no less

serious than acts that result in damage to an employer’s property, constitute assault to a

coworker, or involve the use of drugs or alcohol. See id. For the circuit court to find

otherwise was in error.



              In reaching our decision, we remain mindful that

                     [t]he unemployment compensation program is an
              insurance program, and not an entitlement program, and is
              designed to provide “a measure of security to the families of
              unemployed persons” [footnote omitted] who become
              involuntarily unemployed through no fault of their own. “The
              [Act] is not intended, however, to apply to those who ‘willfully
              contributed to the cause of their own unemployment.’ ” See Hill
              v. Board of Review, 166 W.Va. 648, 651, 276 S.E.2d 805, 807
              (1981) (quoting Board of Review v. Hix, 126 W.Va. 538, 541, 29
              S.E.2d 618, 619 (1944)).

Childress v. Muzzle, 222 W.Va. 129, 133, 663 S.E.2d 583, 587 (2008) (emphasis added). In

the case at bar, Mr. McCarthy purposefully threw a jack rock into the path of a vehicle

convoy carrying management employees to work, thus, he “willfully contributed to the cause


                                               22

of [his] own unemployment.” Id. While “[u]nemployment compensation statutes . . . should

be liberally construed to achieve the[ir] benign purposes[,]”24 such liberal construction does

not diminish our role in protecting the unemployment compensation fund against claimants

who are not entitled to benefits. As we further explained in Childress:

                 we believe that the basic policy and purpose of the
                 [Unemployment Compensation] Act is advanced both when
                 benefits are denied to those for whom the Act is not intended to
                 benefit, as well as when benefits are awarded in proper cases.
                 Additionally, we believe that the Act was clearly designed to
                 serve not only the interest of qualifying unemployed persons,
                 but also the general public. (footnotes omitted).

Childress, 222 W.Va. at 133, 663 S.E.2d at 587 (citing W.Va. Code § 21A-1-1(2), (3) and

(4)). In short, the employment law of this state is clear that not every terminated employee

is qualified to receive unemployment compensation benefits. An employee discharged for

simple misconduct is partially disqualified from receiving such benefits, whereas an

employee terminated for gross misconduct is wholly disqualified. W.Va. Code § 21A-6-3;

Dailey, 214 W.Va. 419, 589 S.E.2d 797.



                 Bearing these principles in mind and following our careful review of the

record, we reverse the circuit court’s order and affirm the decision of Workforce West

Virginia determining that Mr. McCarthy’s actions constituted gross misconduct which

disqualified him from receiving unemployment benefits.



       24
            Syl. Pt. 6, in part, Davis v. Hix, 140 W.Va. 398, 84 S.E.2d 404 (1954).

                                               23

                                   IV. Conclusion

             Based on the foregoing, we reverse the circuit court’s order and remand this

case to the Circuit Court of Kanawha County for reinstatement of the Workforce West

Virginia decision finding Mr. McCarthy disqualified from receiving unemployment

compensation benefits due to his gross misconduct.

                                                               Reversed and Remanded.




                                          24

