STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)


STEPHANIE M OLIVER, Employee

TRADE SECRET INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00003008LX


An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employee is ineligible for benefits beginning in week 18 of 2000, and until seven weeks have elapsed since the end of the week of discharge and the employee has earned wages in covered employment performed after the week of discharge equaling at least 14 times the employee's weekly benefit rate which would have been paid had the discharge not occurred. The employee is required to repay the sum of $1,400.00 to the Unemployment Reserve Fund.

Dated and mailed October 26, 2000
olivest.usd : 135 : 1  MC 640.03 MC 640.06

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner


MEMORANDUM OPINION

In her petition for commission review, the employee raises several arguments for the reversal of the appeal tribunal decision. The employee's two main arguments in support of a reversal are that the appeal tribunal decision contains several errors and that the employee's conduct does not rise to the level of misconduct connected with her work.

Concerning the employee's first argument, the employee offered detailed explanation regarding the various erroneous findings made by the ALJ.  A common theme is that the employee's as well as her co-worker's testimony (Angela Dohms) either contradicted or simply outweighed the employer's testimony. For example, the employee argues that the only proof of the name sticker dispute is that of the manager's own testimony. Another example concerns the ALJ's finding that the employee and her manager experienced "continuing problems" from February to mid-March. Neither the employee nor Ms. Dohms characterized the relationship between the employee and her manager as problematic, despite the ALJ's findings.

The employee contends that the ALJ erroneously relied on the manager's testimony to support her factual findings and legal conclusion. The employee is correct in stating that the critical question in this case is one of credibility. Here, the manager's version of the facts and that of the employee's version of the facts are inconsistent. The commission realizes that it is seldom easy to resolve a case with two such conflicting versions of the facts. However, the ALJ, was in a good position to make a determination as to credibility and credited the manager's testimony over that of Ms. Dohms and the employee. The commission finds no compelling reason in the testimony or elsewhere in the record to question this credibility determination and defers to the judgment of the ALJ as to credibility.

The employee's argument largely ignores the ineffectual working relationship the employee and her manager had. In addition, the employee discounts the fact that her manager was her superior and that as such an employer has a right to expect employees to do the work that they are assigned to do and to follow instructions without deliberate refusal.

In this same vein, the commission provides a similar response to the employee's second argument. The employee disregarded the directive of her immediate supervisor on several occasions, including refusing to wear a name sticker and remove garbage. The employee also inappropriately challenged her supervisor's authority. And while no single incident in the employee's record might alone amount to misconduct, the commission is satisfied that the employee's overall pattern of behavior and resistance to cooperate with her manager was so insubordinate that it rose to the level of misconduct.

Apparently, a major bone of contention between the employee and her manager was the alleged promise of favorable scheduling agreed to prior to the manager's hire. In her petition, the employee alludes to possible written proof of this promise which she alleges may have been removed from her personnel file. The commission notes that the employee could have and should have subpoenaed the individual with firsthand knowledge of the scheduling promise. Under the circumstances, both the ALJ and the commission are left to rely solely on the credibility of the witnesses in this regard. And as discussed above, the commission finds no reason to disturb the ALJ's credibility determination.

Finally, the employee argues that her conduct did not interfere with her employer's interests sufficient to support a finding of misconduct. Specifically, the employee argues that nothing in the evidence submitted shows that she intended to challenge the authority of her manager or otherwise interfere with the interests of the employer. Moreover, the employee argues that none of the evidence presented shows that her conduct had any impact on the employer's interests that was both negative and noteworthy.

In support of her argument, the employee cites Beanland v. Gunderson Cleaners, Inc., Hearing No. 96402632AP, (LIRC February 12, 1998). In Beanland, the commission found that the employer failed to prove that the employee deliberately failed to follow specific orders or perform assigned work. In addition, the commission found that the employee's rude, vulgar and disparaging comments to be "poor attitude" which in the absence of some evidence of actual insubordination did not rise to the level of misconduct."    However, here there were specific incidents reflecting the employee's refusal to follow directions as well as cooperate with her manager. Under the circumstances, the commission is satisfied that the record supports the conclusion that the employee's actions intentionally and deliberately interfered with the employer's interests thereby establishing misconduct within the meaning of the law.

cc: TRADE SECRET INC

ATTORNEY HEIDI SZATMARY
BOSSHARD & ASSOCIATES

ATTORNEY BRIAN G WEBER
JOHNS FLAHERTY & RICE SC


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