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

BENJAMIN L GUMS, Employee

KELLEY CO INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00608487MW


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 makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked for about two years as a foam saw operator for the employer, a manufacturer of seals and shelters. His last day of work was September 1, 2000 (week 36), when he was discharged.

The issue which must be decided is whether the employee's discharge was for misconduct connected with the employee's employment.

The employee was given a disciplinary notice on August 24, for unexcused absence. On August 26, he received a final written warning for fighting on the employer's premises. On December 9, the employee received a first written warning for leaving prior to the end of his shift and failing to provide a doctor's excuse to substantiate his reason for leaving. On February 1, 2000, the employee received a final written warning for falling asleep during an important meeting.

At the hearing the employer noted that the triggering incidents that led to the employee's discharge related to his using profanity when talking with a supervisor. On December 7, 1999, one of the employee's co-workers told the acting plant manager that the employee was leaving. The acting manager asked the employee why and he stated that he had a headache. He also said "see that fucking door over there, I am leaving through that fucking door." The acting manager reported the employee's statement to the manager of operations and the employee received a final written warning. He was told that based upon this offense and prior offenses any infraction could result in discharge.

On September 1, the lead person reported to the acting plant manager that the employee was not cutting foam. When she approached him and asked why, he explained that there was no place to put the foam. She made two suggestions and he further explained why he could not place the foam there. The employee slammed his fist on the table and said, "I don't give a fuck if you are the President of the United States, there is no place to put the foam." Co-workers were present during each of these last two incidents. The assistant manager believed that the employee was challenging her authority in a loud manner in the presence of other workers she supervised.

In Boynton Cab Co. v. Neubeck & Ind. Comm., 237 Wis. 249, 296 N.W. 636 (1941), the leading case with respect to the meaning of the term "misconduct" as applied to unemployment compensation in the United States, the court said, in part, as follows:

" . . . the intended meaning of the term `misconduct' . . . is limited to conduct evincing such wilful or wanton disregard of an employer's interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer's interests or of the employee's duties and obligations to his employer. On the other hand mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good-faith errors in judgment or discretion are not to be deemed `misconduct' with in the meaning of the statute."

In this case, the employee asserts that he did not remember that he had been previously warned for using profanity. He further stated that profanity was common at the employer, and that he believed that the final incident was no different than any other day. However, the fact remains that the employee had been warned about swearing at his supervisor and should have been aware that if he did so again he could be discharged. The employee swore at his supervisor in a public area and in front of his co-workers. Further, the employee's comment was disrespectful and the employee pounded his fist on the table. The supervisor credibly testified that she found his conduct aggressive and demeaning. Under the circumstances the employee's threatening and extremely disrespectful behavior demonstrated such a wilful and substantial disregard of the employer's interests as to constitute misconduct connected with his work.

The commission therefore finds that in week 36 of 2000 the employee was discharged for misconduct connected with his employment within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 36 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. There is no overpayment as a result of this decision.

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 June 19, 2001
gumsbe . urr : 145 : 1  MC 640.15

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

The commission discussed witness credibility and demeanor with the ALJ who held the hearing in this case. She found credible the employee's assertion that he thought that this was a normal everyday conversation. He did not think he was directing profanity at his supervisor. The ALJ pointed out that the supervisor herself indicated that swearing occurred at the workplace. Further, the ALJ noted the employee did not appear, at the hearing, at any rate, to have an aggressive personality. However, the commission did not believe that the employee thought this was just a normal conversation with the supervisor. In the first place, he had been warned about swearing at his supervisor. In the second place the employee challenged his supervisor in an aggressive manner in a public area. While he may have been frustrated because there seemed no place to put the cut foam, it was also true that if he did not cut the foam, the assemblers would be unable to work. Thus, the supervisor would clearly be interested in finding a place to put the foam, and the employee's response was threatening and disrespectful.

cc: 
Kelley Tufseal
Quarles & Brady LLP


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uploaded 2001/06/21