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

JASON D SCHULTZ, Employee

NERCON ENG & MFG INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 01402127AP


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 as a second-shift assembler for about five months for the employer, a manufacturer of conveyor equipment. The employer's rules, of which the employee received a copy upon hired, forbid "intentionally damaging or defacing" company property or equipment and horseplay on company property." The rules also provided that, "If an employee breaks or damages any equipment it must be reported to their supervisor immediately" and "fire doors and fire extinguishers must be kept unobstructed at all times." On May 24, 2001, the employee attempted to play a practical joke on a co-worker by locking him in the employer's paint closet. The room was considered a fire hazard area by OSHA because of the combustible contents. The employee wedged a two by four board behind the door lever after his co-worker entered the pain storage room. The co-worker could not turn the door handle. The co-workers started to open the door, but could not. The employee chuckled. The co-worker kept telling the employee to open the door. The co-worker said he would break the board. The employee said, "Ew, you're strong." The co-worker tried pulling a few times. The employee instructed him to stop pulling the door lever and he would remove the board. The co-worker continued to pull the door lever until it broke and he was able to exit. The employee estimates that his co-worker was in the paint room not much longer than 30 seconds.

Upon the co-worker's exit from the paint room, he spoke to the supervisor. The employee speculated that his co-worker had reported the broken door handle, which was confirmed by another co-worker. On May 25, 2001, the human resource manager questioned the employee regarding the incident the previous day. The employee stated that he was just goofing around. The human resource manager informed him that there was no option except to discharge him. The employee brought up an incident in which a bolt was thrown at him by a co-worker and asked why that co-worker had not been discharged. The human resource manager replied that the incident was not related to the incident of May 24 involving the employee.

The issue to be decided is whether the employee's actions, for which he was discharged, constitute misconduct connected with his 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 employer's position is that the employee's actions on May 24, 2001, amounted to misconduct. The commission agrees. The employee imprisoned his co-worker in a small room, and the employee knew flammable material was kept in the room. The employee would not immediately let the co-worker out. The co-worker was clearly becoming agitated, but the employee did not release the co-worker when the co-worker asked him to, but chuckled and made a comment to the co-worker first. While it was very unlikely that a fire could being or that some other dangerous event might occur, the potential consequences, should such an event occur, could be extremely serious. Further, when the employee did attempt to release the co-worker, he could not remove the board because it was wedged in the door because the co-worker was pulling on the door in an attempt to get out.

The employee was aware that horseplay was not permitted by the employer but stated that he did not believe this rule was enforced. The employee had no real basis for his belief in this regard. A co-worker had thrown a bolt at the employee and it hit him in the head. He mentioned to a worker/supervisor that he had gotten hit in the head by a bolt. From the synopsis, it is not clear that he mentioned to the worker/supervisor that the co-worker had thrown the bolt as a joke. In addition, he testified that he did not report it because it was just horseplay and he did not want to "rat" on the other worker. This is not a sufficient basis upon which to form a belief that the employer tolerated horseplay in spite of its rule.

The employee's actions in this regard amounted to such a wilful and substantial disregard of the employer's interests as to amount to misconduct connected with his work.

The commission therefore finds that in week 21 of 2001 the employee was discharged for misconduct connected with his employment within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employee was paid benefits for weeks 22 and 23 of 2001, amounting to a total of $350.00 for which he was not eligible and to which he 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), because although the overpayment 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.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 21 of 2001, 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 $350.00 to the Unemployment Reserve Fund.

Dated and mailed November 21, 2001
schulja . urr : 145 : 1 MC 656  MC 673 

/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. The ALJ believed that the employee was unaware of the safety hazard involved in locking the co-worker in the paint room. The door was not labeled and the employee did not leave the area. She also believed he was not aware that he would have the difficulty he did have when he decided to let the co-worker out. The ALJ further concluded that the employee was not being evasive, and she thought his testimony as a whole was credible. For the reasons stated in its decision, the commission disagrees with the credibility determination made by the ALJ.

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.


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uploaded 2001/11/26