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

ULLA E GUNDLACH, Employee

BUTLER TILE SALES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00606354MW


On July 19, 2000, the department issued an initial determination finding that the employee was discharged for misconduct connected with her employment in week 24 of 2000. The employee was denied benefits. The employee timely requested a hearing. A hearing was held on September 7, 2000 before Administrative Law Judge Korinek. On September 8, 2000, Administrative Law Judge Korinek issued her appeal tribunal decision, reversing the department's initial determination, finding that the employee's discharge in week 24 of 2000 was not for misconduct connected with her employment. Benefits were allowed. The employer timely petitioned the commission for review of the appeal tribunal decision.

On December 21, 2000, the commission, pursuant to authority granted in Wis. Stat. § 108.09(6)(d), ordered that testimony be taken before an administrative law judge (ALJ), acting on behalf of the commission, with respect to the admission of a UCB-474 medical form as well as any relevant testimony concerning the medical form and other related matters concerning the issue of the employee's discharge. The remand hearing was held on April 9, 2001 before Administrative Law Judge Winderl.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted before both administrative law judges, and after consultation with the administrative law judges as to credibility issues, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked 23 years as an administrative assistant for the employer, a wholesale distributor of tile. The employee's last day of work was June 7, 2000 (week 24) the day she was discharged.

On August 17, 1999, the employee received her first written warning for verbally attacking a co-worker. On November 8, 1999 the employee received a second written warning for additional verbal attacks against four of her co-Worker's. This warning also reprimanded the employee for taking invoices off the president's desk without his permission. On December 7, 1999 the employee was suspended for five days for verbally attacking her co-Worker's. This warning stated that attacks on her co-Worker's were to stop and that the next violation would result in termination of her employment. The employee disputes all of the allegations in each of the warnings.

The employee had an office that was separated from most of her co-Worker's. She tended to keep to herself and not converse with her co-Worker's. For sometime it had become apparent to the employee that her co-Worker's were listening in on her private phone conversations that she conducted while at work because her co- Worker's would mimic back to her words and phrases she had used during these phone conversations. The president testified at the hearing that the employee accused her co-Worker's of tapping her phone.

On June 7, 2000 a co-worker who had mimicked the employee in the past walked by the employee. The employee said to her "If you touch the phone you better watch it." The co-worker began screaming at the employee telling her to stop making such threats. The president intervened and had to physically separate the two women. The employee was discharged that afternoon for compiling a history of belligerent and threatening actions against her co-Worker's.

The issue is whether the employee's actions, which lead to her discharge, constitute misconduct connected with her employment.

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."

The employee had been warned in December 1999 that any additional threats would end her employment. The president who issued the disciplinary warnings witnessed some but not all of the incidents involving the employee and her co- Worker's. Several of the incidents the president witnessed included the employee throwing invoices on co-Worker's' desks and demanding that the invoices be fixed. Although the employee was able to control her conduct for six months without earning any additional warnings, on June 7, 2000, the employee provoked a confrontation with a co-worker. While the co-worker's response to the employee's statement may be characterized as an overreaction, it was the employee who instigated the confrontation, despite repeated warnings and a suspension issued for similar conduct. The employee, however, failed to avoid disruptive contact with her co-Worker's, despite repeated warnings by her employer. An employer has the right to expect its employees refrain from behavior that disrupts work flow and office harmony. Under the circumstances, the commission is satisfied that the employee's actions constitute an intentional disregard of the employer's interests and of the standards of conduct the employer had a right to expect of the employee.

The commission therefore finds that in week 24 of 2000, the employee was discharged for misconduct connected with her employment within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employee was paid benefits amounting to $7,748.00 for which she is not eligible and to which she is not entitled, within the meaning of Wis. Stat. § 108.03 (1). Pursuant to Wis. Stat. § 108.22 (8)(a), the employee is required to repay such sum to the Unemployment Reserve Fund.

The commission further finds that waiver of benefit recovery is not required under Wis. Stat. § 108.22 (8)(c), be cause although the over payment did not result from the fault of the employee as provided in Wis. Stat. § 108.04 (13)(f), the overpayment was not the result of a department error. See Wis. Stat. § 108.22 (8)(c)2. The overpayment in this case results from the commission's reversal of the appeal tribunal decision.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 24 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 amount of $7,748.00 to the Unemployment Reserve Fund.

Dated and mailed July 31, 2001
gundlul . urr : 135 : 1  MC 666.01   MC 669   PC 714.10 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

The commission notes that it conferred with ALJ Korinek and ALJ Winderl as to their credibility assessment of all of the witnesses who testified. Each ALJ found the witnesses credible. The commission does not disturb these credibility impressions but rather reverses the appeal tribunal decision as a matter of law. The employee was provided an opportunity to produce medical evidence to support the conclusion that she was unable to control her disruptive behavior while at work. Having failed to comply with the commission's remand order, the commission is left with only the verbal testimony of the witnesses. After considering this evidence, the commission concludes the employee's discharge was based upon disruptive behavior that continued despite warning. Under these circumstances, the commission is satisfied that the employee's discharge was for misconduct connected with her employment.

NOTE: Repayment instructions will be mailed after this decision becomes final. The department will with hold benefits due for future weeks of unemployment in order to off set over payment of U.C. and other special benefit programs that are due to this state, an other state or to the federal government.

Contact the Unemployment Insurance Division, Collections Unit, P. O. Box 7888, Madison, WI 53707, to establish an agreement to repay the over payment.

cc: Attorney Alan C. Olson


Appealed to circuit court. Affirmed March 12, 2002. [Circuit Court decision summary]

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uploaded 2001/09/05