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

MICHAEL A STAHL, Employee

DOSKOCIL FOOD SERVICE, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 01005452JF


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 about two and one-half years as a third-shift sanitation worker for the employer, a manufacturer of dry sausage. His last day of work was August 29, 2001 (week 35).

On August 28, 2001, the employee was directed to go upstairs and clean the North unit floor and the stainless steel chute that conveyed large sausage sticks from another part of the building to a bin at the bottom of the chute where it would be sent on for slicing and packaging. His job was to sanitize and wash away any particles of sausage that might have fallen to the floor. Also, he was to spray the top of the chute with water to wash sausage particles and paper tags from the casings into the bin below.

The employee proceeded to the South unit and began to perform his cleaning duties. He carried a Hudson hand sprayer containing about three gallons of bleach that was used to mist the floor before he hosed it off. When he began his work, the processing crew was away on break so he was not alerted to the fact that the unit was still operating. However, upon the crew's return they called to him to stop running water into the chute and informed him that he had been cleaning the wrong unit. He told them that he had only used water on the chute. The crew then continued to process pepperoni. When the bin was full it was covered with a plastic liner. Thereafter, he proceeded to the correct processing line and cleaned that floor and chute.

The following day when the South chute bin was opened a strong odor of bleach could be detected. A litmus test of the solution in the bin showed an excess concentration of bleach. As a result, approximately 1600 pounds of product had been disposed of.

When the employee reported to duty that evening, August 29, 2001 (week 35), the employer questioned him about his activities regarding cleaning the South bin chute. He stated that he had not used any bleach on that chute, only water. When the employer asked him how bleach had ended up in the bin, he suggested that the only way he could think of was that some of the bleach he had sprayed on the floor had been splashed onto the chute when he used the hose to spray the particles into the drain. At that time the employer suspended the employee's employment pending further investigation.

On September 18, 2001, the employer attempted to reenact the events as described by the employee by spraying the chute with bleach and then water. A litmus test of the solution in the bin contained an excessive concentration of bleach. A second test was then conducted wherein the chute was sprayed with only water and the floor was sprayed with bleach and then water. The solution in the bin did not contain bleach. As a result the employer concluded that the employee had not told the truth when questioned regarding his cleaning of the bin chute. By letter dated September 26, 2001, received by him on September 28, 2001 (week 39), the employer notified him that it was terminating his employment because he had not been truthful about using bleach on the bin chute.

On August 28, 2001, the employee told the workers processing the sausage that he put only water into the chute. On August 29, 2001, he provided the same explanation to management. Because of the serious nature of this matter the employer suspended his employment until it could determine if there was any way that the bin could have become contaminated other than by him having sprayed the chute with bleach.

The first issue presented is whether the employee' suspension was with good cause connected with her employment.

Wis. Stat. § 108.04(6), the disciplinary suspension provision, provides for up to a three week suspension of benefits in cases in which an employee's employment is suspended for good cause connected with the employee's work. The prior statute referred to "misconduct or other good cause" as the standard for judging whether the claimant was disqualified from benefits.

The commission has consistently held that "good cause" for a disciplinary suspension does not require the level of culpability necessary for a finding of misconduct under Wis. Stat. § 108.04(5), and that it includes single isolated acts of poor judgment of the type that might not necessarily amount to misconduct. Nonetheless, some evidence of culpability must be presented to warrant a conclusion that a disciplinary suspension is for good cause. Voeltner v. Consolidated Freightways Corp. of Delaware, Hearing No. 91- 400173 AP (LIRC 5-5-92), The commission does not consider a suspension for investigation to constitute a disciplinary suspension. Brown v. Jewel Food Store, Hearing No. 98-605057MW (LIRC 10- 20-98).

The employer indicated that it suspended the employee pending an investigation, and not as a disciplinary action. Although the employer later discharged the employee as a result of its investigation, this does not alter the fact that the suspension itself was issued solely for investigatory purposes. Therefore the commission concludes that the employee was not suspended with good cause.

The next issue to be decided is whether the employee's discharge was for misconduct connected with his employment.

In Boynton Cab Co. v. Neubeck & Ind. Comm., 237 Wis. 249 (1941), the leading case with respect to the meaning of the term "misconduct" as applied to unemployment compensation in the United Stats, the Supreme Court of Wisconsin said in part, as follows:

[T]he 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 of the employee's duties and obligations to his employer.

The employer contended that the employee's failure to admit that he had sprayed a bin chute with bleach on August 28, 2001, amounted to misconduct connected with his employment. That contention cannot be sustained. The evidence presented by the employer at the hearing did not establish that the only possible source of contamination of the bin was from the employee spraying the chute with bleach before using water to wash it down. It was not part of the 1 a.m. cleaning schedule to use bleach on the chute. The evidence at the hearing did not eliminate the possibility that the bin contained a bleach solution from a previous cleaning earlier that evening. The employer acknowledged that the odor would not have been detected at that point.

Although the employer may have been dissatisfied with the employee's work performance, none of the employee's actions evinced such a wilful, intentional, or so substantial a disregard for the employer's interests as to amount to misconduct connected with the employment.

The commission therefore finds that in weeks 35 through 38 of 2001, the employee's employment was not suspended as a disciplinary action for good cause connected with that work, within the meaning of Wis. Stat.
§ 108.04(6).

The commission further finds that in week 39 of 2001, the employee was discharged but that the discharge was not for misconduct connected with the employee's work, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is reversed in part and affirmed in part. Accordingly, the employee is eligible for benefits beginning in week 35 of 2001. He is not required to repay any benefits to the Unemployment Reserve Fund.

Dated and mailed March 29, 2002
stahlmi . urr : 178 : 1 MC 676  MC 630.07 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner

MEMORANDUM OPINION

The commission does not reverse the suspension finding based on any differing assessment of witness credibility but as a matter of law.

cc: Doskil Food Service Company (Jefferson, Wisconsin)



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