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


NICOLAS ALAMO CASTILLO, Employee

PATRICK CUDAHY INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00603019MW


On March 18, 2000, the Department of Workforce Development issued an initial determination which held that the employee's discharge was not for misconduct for unemployment insurance purposes. The employer filed a timely request for hearing on the adverse determination; hearing was held on May 4, 2000 in Milwaukee, Wisconsin before a department administrative law judge. On May 15, 2000, the administrative law judge issued an appeal tribunal decision affirming the initial determination. The employer filed a timely petition for commission review of the adverse appeal tribunal decision, and the matter now is ready for disposition.

Based upon the applicable law and the records and other evidence in the case, and after consultation with the administrative law judge, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee in this case worked as a fill pack operator for the employer, a meat processing concern. The employer discharged him on February 28, 2000 (week 10), for alleged intentional contamination of the employer's product. The commission concludes that the evidence is sufficient to establish the culpability of the employee, and so reverses the appeal tribunal decision.

On February 22, 2000, the employee's supervisor discovered that a glove had been placed in a ham mold, contrary to the employer's work rules for maintaining sanitary conditions. The supervisor immediately went to the table from which the ham came, and questioned the employee and two co-workers (Antonio Torres and Carmen J. Anguiano, subjects of companion commission decisions issued with the present one). No one admitted any knowledge as to how the glove got into the mold. The employer questioned the employee and his co-workers again on February 28; they continued to deny any knowledge of how the glove got into the mold (or remained in it after the lid was placed on the mold for sealing), or how a spring came to be in a mold on February 23. Following this questioning, the employer discharged the employee and his co-workers for having contaminated the employer's product.

The employer's packaging procedure, in relevant part, is as follows. Approximately three individuals would load unbaked ham product into a mold and then place the mold at the table where the employee and his two co-workers worked. The employee and two co-workers then would place lids on top of the molds and slide the product to their right, where a fourth individual, a Jose Torres, would seal the lid onto the mold using a springed pressured machine. The lids could not be sealed by hand. Jose Torres would then place the sealed molds in a basket for retrieval by an individual the employer referred to as the "service man." It was the service man who initially discovered a blue work glove sticking out from under a sealed lid of one of the molds. The mold in question was at the top of the basket, indicating that it had recently been sealed in that fashion (with a glove sticking out). In addition to discharging the employee for this incident, the employer also discharged the two co-workers and Jose Torres.

Misconduct for unemployment insurance purposes includes intentional and substantial disregard by an employee of standards an employer reasonably may expect of its employees. The commission believes the employee's conduct in this case meets this standard. The placement of the glove in the employer's product is product tampering, sabotage, and intentional damage to employer property. It is true that the evidence does not establish that the employee or his two co-worker actually placed the glove in the ham mold. What is necessarily true, though, is that the employee and his co-workers allowed the glove to remain in the mold while one of them placed a lid on top of the mold, partially concealing the glove, and passed the mold in that condition to Jose Torres for the latter to seal the lid on the mold (before the mold went for baking). This failure by the employee and his co-workers is as egregious and serious as if they had put the glove in the mold themselves.

The commission therefore finds that, in week 10 of 2000, the employee was discharged for misconduct for unemployment insurance purposes. The commission also finds that the employee was paid unemployment benefits in the amount of $223.00 per week for each of weeks 11 through 33 of 2000, totaling $5,129.00, for which he was ineligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03(1). Pursuant to Wis. Stat. § 108.22(8)(a), he must repay such sum to the Unemployment Reserve Fund. The commission finds, finally, that waiver of benefit recovery is not required under Wis. Stat. § 108.22(8)(c). Although the overpayment did not result from employee fault as provide in Wis. Stat. § 108.04(13)(f), the overpayment also was not the result of departmental error. See Wis. Stat. § 108.22(8)(c)2.

DECISION

The appeal tribunal decision is reversed. Accordingly, the employee is ineligible for benefits beginning in week 10 of 2000, and until seven weeks have elapsed since the end of the week of discharge and he has earned wages in covered employment performed after the week of discharge equaling at least 14 times his weekly benefit rate which would have been paid had the discharge not occurred. The employee must repay $5,129.00 to the Unemployment Reserve Fund.

For purposes of computing benefit entitlement, base period wages from work for the employer prior to the discharge shall be excluded from any computation of maximum benefit amount for this or any later claim. If the employee was also paid base period wages from work by other covered employers, the excluded wages shall be used to determine benefit eligibility. However, any benefits otherwise chargeable to a contribution employer's account shall be charged to the fund's balancing account.

Dated and mailed October 26, 2000
alamoni.urr : 105 : 1  MC 610.08

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner

NOTE: As indicated above, the commission conferred with the administrative law judge before determining to reverse the appeal tribunal decision in this case. The administrative law judge did not base his decision upon the credibility of the employee's testimony or the lack of credibility of the testimony of the employee's supervisor. Rather, he believed the evidence was simply too circumstantial to establish that the employee and his co-workers were responsible for either placing the glove in the mold or allowing it to remain there when the lid was secured on the mold. The commission's reversal of the appeal tribunal decision is based upon its analysis of the employer's work procedure, specifically that only the employee and his two co-workers were responsible for placing lids on the molds before sealing. Another factor in the commission's reasoning was that the lids could only be secured on the molds by a springed pressure machine (which precluded the possibility that the employee and his co-workers were "set up" by an unknown individual placing a contaminated mold in the basket after the basket left the area of the springed pressure machine).

cc: IKE EDWARDS/BUS REP
LOCAL 73 A, UNITED FOOD & COMMERCIAL WORKERS


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