dissenting.
I respectfully dissent. I believe that the order of the Unemployment Compensation Board of Review (UCBR) which affirmed the referee’s grant of benefits to the Claimant should be reversed.
In its decision to affirm Claimant’s receipt of benefits, the majority states that the UCBR concluded that because of Employer’s disparate treatment, Claimant was not guilty of willful misconduct. Clearly this was an erroneous conclusion since the Claimant’s behavior did constitute willful misconduct.
This court has held that participation in a fight during working hours is willful misconduct which alone may disqualify a claimant from receiving benefits since, at a minimum, the conduct rises to a level of disregard of *674expected standards of behavior and of the employer’s interest. Perez v. Unemployment Compensation Board of Review, 58 Pa.Commonwealth Ct. 282, 427 A.2d 763 (1981). Moreover, this court has held that a violation of a reasonable work rule rises to the level of willful misconduct unless the action of the employee is justifiable or reasonable under the circumstances. Peeples v. Unemployment Compensation Board of Review, 104 Pa.Commonwealth Ct. 504, 522 A.2d 680 (1987).
In this case, the UCBR did not make a finding, on the justification of Claimant’s actions. It would, therefore, be incorrect to conclude that Claimant’s behavior did not constitute willful misconduct.
The majority correctly notes that the applicable standard of employee conduct was set forth by this court in Beaver Falls v. Unemployment Compensation Board of Review, 65 Pa.Commonwealth Ct. 14, 441 A.2d 510 (1982). However, the majority fails to do more than simply enunciate this fact. In Beaver Falls, this court stated that where an employee discharge based on the violation of a rule is established, the burden shifts to the claimant to prove both that the rule was not enforced uniformly and that a violation thereof was not an act which was contrary to a reasonable standard of behavior which an employer could expect of an employee.
In this case, the Claimant did not prove that his violation of Employer’s rule against fighting was not an act which was contrary to a reasonable standard of employee behavior. Fighting, in direct violation of a company policy, can hardly be considered reasonable behavior for an employee.
Finally, the majority relies on American Racing Equipment, Inc. v. Unemployment Compensation Board of Review, 144 Pa.Commonwealth Ct. 310, 601 A.2d 480 (1991) to support its conclusion that there was disparate treatment of employees so the Claimant should not be denied benefits. I believe that the present case is more analogous to Bays v. Unemployment Compensation Board of Review, 62 Pa.Commonwealth Ct. 421, 437 A.2d 72 (1981) than to American Racing.
In Bays, this court held that unless an employer’s disparate treatment of his employees with respect to a discharge for misconduct demonstrates that the discharge is in reality an act of unlawful discrimination, which the denial of unemployment compensation benefits would reinforce, then benefits should be denied. In this case, there was no evidence presented to substantiate a finding that the Employer’s conduct reached the level of unlawful discrimination. Moreover, this court in American Racing acknowledged the holding in Bays that the mere fact that one employee is discharged for willful misconduct and others are not discharged for the same conduct does not establish disparate treatment.
Accordingly, I would reverse the order of the UCBR and deny the referee’s grant of benefits to the Claimant.