JAMES P PISKULA, Employee

MIDWEST PRODUCTS & ENGINEERING INC, Employer

On December 21, 2001, the Department of Workforce Development issued an initial determination which held that the employee was discharged for misconduct connected with his employment. The employee filed a timely request for hearing on the adverse determination, and hearing was held on February 27, 2002 in Milwaukee, Wisconsin before a department administrative law judge. On March 13, 2002, the administrative law judge issued an appeal tribunal decision reversing the initial determination. The employer filed a timely petition for commission review of the adverse appeal tribunal decision, and the matter now is ready for disposition.

Based upon the applicable law and the records and other evidence in the case, and after consultation with the administrative law judge, the commission issues the following:

The employee worked approximately one year for the employer, a manufacturer. In his most recent work for the employer, he was a punch press operator, second shift. The employer discharged him on November 21, 2001 (week 47), for several instances of confrontations with either co-workers or supervisors, and the issue is whether the discharge was for misconduct for unemployment insurance purposes. The commission concludes that it was, and so reverses the appeal tribunal decision.

The employee received a verbal warning for disparaging treatment of co-workers and supervisors in July or August of 2001. The employer was conducting training on cleanliness, clean-up, and shop discipline; the employee for whatever reason started yelling loudly at one of the supervisors present. The employer's vice-president of manufacturing told the employee that his behavior was unacceptable and that the employer would not tolerate it. The employer did not give the employee a written warning at this time; the vice-president hoped that such behavior would not be repeated.

The employee received a written warning for an incident which occurred on September 7, 2001. A co-worker had mis-reported his production, which the employee believed reflected badly upon himself. The employee complained to the second shift supervisor, who responded that there was no adverse reflection upon the employee, that the sole matter of importance was that the final count be correct. Later in the shift, the employee and another co-worker were discussing the first co-worker (who had incorrectly recorded the count). The employee was loudly complaining about the co-worker's failure; the supervisor told the employee to drop the conversation; the employee refused to do so and told the supervisor that he could leave if he did not like it. The supervisor responded that, instead, the employee could leave. The employee initially refused to do so, but eventually followed the supervisor's directive and left the workplace. This incident occurred on Friday, September 7; on Monday, September 10, the employee received a written warning indicating that his behavior had been unacceptable and that, if it continued in the future, he would be subject to discharge.

The incident precipitating the discharge of the employee occurred on November 20, 2001. A new co-worker had placed, admittedly wrongly, a skid of material on top of some of the employee's production. The employee confronted the co-worker and directed him to remove the skid. Later in the shift the employee noticed that the skid had not been removed. He angrily confronted the co-worker, using vulgar and insulting language, and demanded that the co-worker move the skid. His demeanor and behavior was so confrontational that, shortly after this confrontation, the co-worker informed the supervisory personnel that he was contemplating quitting. Another co-worker indicated that the employee literally was screaming at the top of his voice at the new co-worker. On November 21, 2001, the employer met with the employee and informed him that he was discharged for his continued unsatisfactory behavior at the workplace.

Misconduct for unemployment insurance purposes is the intentional and substantial disregard by an employee of standards an employer reasonably may expect of its employees. The employee's behavior in the incidents described above, meets this standard. On the first occasion described, the employee at a minimum was disrespectful of supervisory personal. In the second incident, the employee was insubordinate outright. In the third incident, the employee went far beyond the bound of appropriate conduct toward co-workers.

The commission therefore finds that, in week 47 of 2001, the employee was discharged for misconduct connected with his work, within the meaning of Wis. Stat. § 108.04(5). The commission also finds that the employee was paid benefits in the amount of $275.00 per week for each of weeks 48 of 2001 through 7 of 2002, totaling $3,300.00, for which he was ineligible 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 must repay such sum to the Unemployment Reserve Fund. The commission finds, finally, that waiver of benefit recovery is not required under Wis. Stat. § 108.22(8)(c). Although the overpayment did not result from employee fault as provided in Wis. Stat. § 108.04(13)(f), yet the overpayment also was not the result of departmental error. See Wis. Stat. § 108.22(8)(c)2.

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 47 of 2001 and until seven weeks have elapsed since the end of the week of discharge and he has earned wages in covered employment equaling at least 14 times the weekly benefit rate which would have been paid had the discharge not occurred. The employee must repay $3,300.00 to the Unemployment Reserve Fund.

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 other wise chargeable to a contribution employer's account shall be charged to the fund's balancing account.

Dated and mailed August 28, 2002
piskuja . urr : 105 : 8   MC 640.05  MC 668  MC 669

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner

NOTE: As indicated, the commission conferred with the administrative law judge before determining to reverse the appeal tribunal decision in this matter. The administrative law judge did not credit the vice-president's testimony that he talked to the employee in July or August of 2001, because of his vagueness as to when the discussion actually occurred. That vagueness, in itself, does not mean the discussion never took place, however. The vice-president's testimony about the incident overall was specific and detailed. That he did not remember exactly which month it occurred in, six or seven months later at hearing, is insufficient basis to discount the testimony.

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uploaded 2002/09/20