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


VIRGIL E ERBY, Employee

EMMPAK FOODS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00603853MW


On April 28, 2000, the Department of Workforce Development issued an initial determination which held that the employee's discharge was not for misconduct connected with his employment. The employer filed a timely request for hearing on the adverse determination, and hearing was held on June 2, 2000 in Milwaukee, Wisconsin before a department administrative law judge. On June 7, 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, by August 25, 2000 order, the commission remanded the matter for additional hearing. That hearing was held on November 21, 2000; the case is back to the commission, and is ready for decision.

Based upon the applicable law and the records and other evidence in the case, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee in this case worked approximately a year and a half on a production line for the employer, a meat packing concern. The employer discharged him on April 3, 2000 (week 15), for having taken an unauthorized break, despite order to the contrary, on his last day of work, March 31, 2000. The commission concludes that this failure by the employee constitutes misconduct for unemployment insurance purposes, and so reverses the appeal tribunal decision.

The employee's last day of work was his first day at work since March 7, at which time he walked off the job after an hour. The employee had mental difficulties from then until his return to work on March 31, difficulties which prevented him from working during that time. In any event, the employee was released to return to work beginning March 31, 2000. He showed up for work without advance notice to the employer, and was instructed to sit in the employer's personnel office while the employer contacted the employee's hospital in order to obtain a release for the employee to return to work. After approximately an hour and a half the employer was successful, at which point the employee went to work in a refrigerated area of the plant, first watching for boxes to jam up and then helping out on the scales, stacking up boxes. The cold began to bother the employee's legs, so he told his supervisor he was going on break. The supervisor told the employee that relief workers would be there in approximately 20 minutes; the supervisor asked the employee to stay until he (the supervisor) found someone to relieve him. The employee said he did not care and that he was going to go on his break, which he did. The employee was gone on his break for more than an hour. Upon the employee's return to his work area, the supervisor instructed him to punch out and see management personnel the following day. At this point, the employee directed several profanities toward the supervisor and then punched out. As indicated above, the employer discharged the employee for this behavior, approximately three days later.

Misconduct for unemployment insurance purposes is the intentional and substantial disregard by an employee of standards an employer reasonably may expect of its employees. The employee's behavior in this case meets that standard. First, he was insubordinate in failing to follow the supervisor's directive that he remain at his work station until replacement help could be found. Second, despite being authorized under any circumstances to take only 15-minute breaks, the employee's break was of more than an hour's duration, and was unauthorized. Third, upon the employee's return from break he committed yet another instance of insubordination in his swearing at his supervisor. Given this course of behavior, the commission must conclude that the subsequent discharge was for misconduct for unemployment insurance purposes.

The commission therefore finds that, in week 15 of 2000, the employee was discharged for misconduct connected with his work, within the meaning of Wis. Stat. § 108.04(5). The commission also finds that the employee was paid benefits totaling $6,058.00, for each of weeks 15 through 40 of 2000, 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 provided in Wis. Stat. § 108.04(13)(f), yet 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 15 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 $6,058.00 to the Unemployment Reserve Fund. The department's monetary computation (Form UCB-700), issued on April 5, 2000, is set aside.

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 January 2, 2001
erbyvir.urr : 105 : 1  MC 640.03   MC 640.15  PC 714.10

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner

NOTE: The commission did not confer with the administrative law judge before determining to reverse the appeal tribunal decision in this case. The commission's reversal is not based upon a differing credibility assessment from that made by the administrative law judge. Rather, even believing the employee's evidence, that evidence was insufficient as a matter of law to establish that the employee's medical condition caused the behavior by the employee on March 31 which led to the employee's discharge.

cc: KENNETH L GLINSKI
DIRECTOR OF HUMAN RESOURCES
C/O WIS PAK FOODS


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uploaded 2001/01/29