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

EARL E BOOS, Employee

HUNTSINGER FARMS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02200180EC


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 the employer, a manufacturer of horseradish, for slightly over two years as a truck driver. His last day of work was November 5, 2001. He was discharged on November 8, 2001 (week 45).

On his last day of work the employee made a delivery to Aurora Dry Mixing, a customer located in Chicago. While there the employee had an altercation with the customer's spotter driver over the location in which the employee's truck was parked. The spotter driver is black and the employee, presumably, is white. The following day the customer informed the employer that the employee had used "the 'N' word" in reference to its spotter. The customer notified the employer that the employee was no longer permitted to deliver to its site and that, if there was ever a repeat incident, it would stop using the employer as its carrier.

The following day the employer called the employee into a meeting and informed him that a complaint had been received regarding an incident between the employee and the spotter driver at Aurora Dry Mixing. Without waiting to hear further details, the employee stated that he was not going to make an issue about some guy being black. The employer explained what the employee was accused of having said, and the employee denied making such a statement. The employer conducted an investigation, which included talking to the supervisor at Aurora Dry Mixing, after which it concluded that the complaint was credible. On November 8, 2001, the employee was discharged as a result of the incident.

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

In Boynton Cab v. Neubeck, 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 employe, 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 employe'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' within the meaning of the statute."

The employee was discharged for having called an employee of one of the employer's customers a "nigger." The employee denied having made the remark in question, and the individual to whom the statement was allegedly made did not appear at the hearing. However, the fact that the employee raised the issue of the spotter's race with the employer before the employer explained what he was accused of warrants an inference that the employee did, in fact, make the statement in question. The employee offered no other explanation as to how he knew the issue was about race prior to being told by the employer, and the commission can think of no innocent reason for him to have jumped to this conclusion. Consequently, the commission is persuaded that the employee did engage in the conduct alleged.

While a single racial epithet might not amount to misconduct in every instance, here the remark was made to an employee of one of the employer's customers and had the potential to jeopardize the employer's relationship with its customer. Given these circumstances, the commission concludes that the employee's behavior evinced a wilful and substantial disregard for the employer's interests and was sufficiently serious as to amount to misconduct.

The commission, therefore, finds that in week 45 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 in weeks 51 of 2001 through week 19 of 2002 in the total amount of $2278, for which he was not eligible 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 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 45 of 2001 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. He is required to repay the sum of $2278 to the Unemployment Reserve Fund.

The initial benefit computation (UCB-700) issued on December 18, 2001, is set aside. If benefits become payable based on work performed in other covered employment a new computation will be issued as to those benefit rights.

Dated and mailed May 24, 2002
boosea . urr : 164 : 1 MC 610.25

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner


NOTE: The commission conferred with the administrative law judge about witness credibility and demeanor. The administrative law judge indicated that he did find the employee credible. However, as stated in the body of the decision, the fact that the employee knew he was being accused of a racial incident before being given the details leads the commission to doubt the credibility of the employee's denial.

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 2002/06/05