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

MICHAEL D CALDER, Employee

PEOPLEASE CORP, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02004412MD


On June 14, 2002, the Department of Workforce Development issued an initial determination which held that the employee's discharge was not for misconduct connected with his employment. The employer filed a timely request for hearing on the adverse determination, and hearing was held on July 31, 2002 in Madison, Wisconsin before a department administrative law judge. On August 5, 2002, the administrative law judge issued an appeal tribunal decision affirming 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 records and other evidence in the case, and after consultation with the administrative law judge, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked approximately six months as an over-the-road driver for the employer, which provides drivers and payroll services to trucking concerns such as Nordic Express. The president of Nordic Express essentially caused the discharge of the employee, in week 20 of 2002, following a second profane outburst from the employee toward the president, 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 worked for Nordic Express from November of 2001 until mid-May of 2002. There were two incidents which led to the discharge of the employee. The first occurred in January or February, when the employee refused a load and used foul language to the dispatcher, shop personnel, and the president of Nordic Express. The issue was a delay in the setting up of direct deposit for the employee's pay checks. The president testified that the employee had referred to someone in dispatch (it is not clear whom) as a "stupid fucker, dumb son-of-a- bitch." The president told the employee that such conduct would not be tolerated. The employee conceded having given words to an individual the employee described as having become "belligerent" but the employee did not indicate in what manner the individual was so.

The incident precipitating the discharge started with a miscommunication between the dispatcher and the president. The employee had been on the road for approximately three weeks, which was a week beyond what he considered to be his permanent arrangement for work, two weeks out. Both the employee and his wife drive their rig, and they wanted to get home to Kentucky to visit their children. Due to a miscommunication, the employer attempted to assign the employee yet another load. The employee telephoned the employer and began screaming and yelling at the dispatchers, who transferred the call to the president. The employee was belligerent, yelling and screaming at him, and even threatening. He said the employer was no good, "cussing and lying son of bitches," and he called the employer a fat boy, a dumb ass, and a stupid motherfucker.

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 commission believes the employee's outbursts against the employer and dispatch office personnel easily meet this standard. The outbursts went far beyond the bounds of acceptable discourse, and the employee's remarks to the president were tantamount to insubordination as well. Nor, finally, can the circumstances surrounding the outbursts be considered justification therefor, so as to mitigate the employee's culpability for the remarks. With regard to the first incident, while the employee may have been frustrated due to the inability to set up direct deposit for the employee's paychecks, yet the employer was working on the matter and the employee's remarks were simply excessive. With regard to the second incident, while the employer should not have assigned the load in question to the employee, yet the assignment was due to a misunderstanding and, again, the employee's response was so out of proportion as to be completely unwarranted.

The commission therefore finds that, in week 20 of 2002, 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 received unemployment insurance in the amount of $324.00 for each of weeks 21 through 27, and $268.00 in each of weeks 28 and 29, of 2002, totaling $2,804.00, 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. § 108.02(13)(f), yet the overpayment also was not the result of departmental error. See Wis. Stat. Wis. § 108.22(8)(c)2.

DECISION

The appeal tribunal decision is reversed. Accordingly, the employee is ineligible for benefits beginning in week 20 of 2002 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. The employee must repay $2,804.00 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 February 3, 2003
caldemi . urr : 105 : 1 MC 640.15

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner


NOTE: As indicated above, the commission conferred with the administrative law judge before determining to reverse the appeal tribunal decision in this case. The administrative law judge believed that the circumstances surrounding the two outbursts mitigated the employee's culpability to a point below the threshold for misconduct for unemployment insurance purposes. The commission respectfully disagrees; as it indicated in the decision, the commission believes the employee's responses were simply too far out of proportion to avoid a finding of misconduct.


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uploaded 2003/02/15