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

DANA Q SNEATH, Employee

TRANE COMPANY, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02200413LX


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 four years as a production and assembly worker for the employer, a heating and ventilation equipment manufacturer. His last day of work was January 11, 2002 (week 2), when his employment was suspended.

The issue to be decided in this case is whether the suspension of the employee's employment in week 2 of 2002, was a disciplinary action for good cause connected with his employment.

On December 30, 2001 (week 1), at the beginning of his work shift the employee noticed that a worker with whom he did not particularly get along, was listed as working overtime in the pre-wire department. Later in the shift the employee went to another area to obtain some parts, and saw that worker in the gear drive area. The employee went to the worker and asked him why he was there. The employee told the worker he did not belong there and that the worker was in his area. The co-worker asked him to go back to his area. The employee followed the worker as he went to another location and told him he should be in pre-wire. The worker told the employee that when he was the worker's foreman he could tell him what to do. The employee insisted the worker should be in pre-wire and an argument ensued. The employee jumped on the scaffold the worker was standing on and said, "I ought to take you right outside old man." The employee said, "Have at it." He repeated this statement. During the disagreement, both workers were using foul language.

The employee was called into a meeting on Friday, January 11, 2002, and was informed that his employment was suspended based on the December 30 incident.

The employee's suspension on his last day of work was a disciplinary suspension. The employee accosted a co-worker and repeatedly told him he should be working in another location. The employee pressed the matter until a heated argument ensued. The employee further threatened the co-worker with physical violence. Thus, the employer had good cause for suspending the employee's employment.

The commission therefore finds that in week 2 of 2002, the employee's work was suspended as a disciplinary suspension, for good cause connected with his work, within the meaning of Wis. Stat. § 108.04(6).

The commission further finds that the employee was paid benefits for each of weeks 2 through 5 of 2002, amounting to a total of $973.00; for which he was not eligible and to which he was not entitled, with in the meaning of Wis. Stat. § 108.03 (1), and 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), 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.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits in weeks 2 of through 5 of 2002. The employee is thereafter eligible, if otherwise qualified. The employee is required to repay the sum of $973.00 to the Unemployment Reserve Fund.

Dated and mailed September 12, 2002
sneatda . urr : 145 : 3  MC 676

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner




MEMORANDUM OPINION

The commission discussed witness credibility and demeanor with the ALJ who held the hearing. She found the employee's testimony, that the co-worker provoked the employee, by spitting at him, to be credible. For one thing, she noted that he talked to a union representative almost immediately after the incident, and told the union representative that his co-worker spit at him. In addition, when asked about his comment that he was not likeable, on UCB-157 investigation statement, he initially denied making this statement, and then agreed that he said this. The ALJ found that it made him more credible because he admitted he was not perfect. However, the commission disagrees with the ALJ's credibility determination because the employee testified he remembered the incident, until about the time he told the co-worker that the co-worker was lucky he did that in the building because he knew the co-worker would not swing at him in the building, and asked if the co-worker was suggesting that they go outside. The employee indicated that the union steward asked the three co-workers who were in the area whether they saw the co-worker spit at the employee and they said they did not see anything. Further, the commission takes a different view of the fact that the employee was inconsistent about his statement as to whether he was likeable. The employee was testifying under oath and should have answered the question correctly in the first place. His failure to do so suggests that his testimony as to other facts might not be reliable.

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.

The overpayment is calculated based on a suspension from week 2 through week 5 of 2002. The record reflects that the employee was suspended in week 2 of 2002, but does not indicate when the suspension ended. However, other department records indicate that the employee was discharged in week 7 of 2002. If the employee's suspension ended earlier than week 5 of 2002, the employee should inform the commission of this and the commission can take steps to correct the overpayment information.


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uploaded 2002/09/30