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

ARTHUR W STEWART, Employee

MILLER COMPRESSING CO, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02606477MW


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 scrap processing business, for 24 years as a general laborer. His last day of work was June 14, 2002 (week 24).

In his last nine months of employment the employee was responsible for bundling five-pound aluminum bars and strapping them with a strapping gun to hold them in place. On June 6, 2002, the employee was using the strapping gun when a cord attachment on the gun broke. The employee reported the broken cord and performed other tasks while he waited for his supervisor to repair it. When the supervisor arrived, he told the employee to continue using the strapping gun without the cord attached, but the employee indicated it was too heavy to use that way. The supervisor repeated that the employee should use the gun without the cord, but the employee stated he had never seen it used that way and that it was too heavy. The supervisor asked whether the employee was refusing to do the job, and the employee indicated he would not do it because the gun was too heavy.

On June 14 the employee was discharged because of the incident described above. In the discharge letter the employer also mentioned that the employee had failed to follow the employer's instructions to rotate jobs with a co-worker.

The question to decide is whether the employee's discharge was for 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 employer contended that the employee refused to follow a directive from the employer and that this failure was misconduct. The commission disagrees. Although the employee refused to perform a work assignment, he had a legitimate reason for doing so. The employee was asked to perform a job using a piece of broken equipment, and believed that he could not do so safely. The employee's understanding in this regard was not unreasonable. The strapping gun weighed at least eight pounds, and the employer's witness agreed that the cord takes some of the weight off the person doing the strapping and makes it easier to use. While the employer insisted that the strapping gun could be used safely without a cord, the employee had never done so, nor had he seen any other worker use the strapping gun in that manner. The employee had not complained about using the gun in the past, when it had worked properly, and there is no reason to believe that the employee was using the situation to get out of work, as he was performing another task while he waited for the cord to be repaired. Under all of the circumstances, the commission sees no reason to doubt that the employee was genuinely concerned about his safety, and concludes that his actions were not undertaken in wilful disregard for the employer's interests. The commission additionally notes that, if the employer thought the matter serious enough to warrant discharge, it should have put the employee on notice of this fact rather than severing a 24-year employment relationship without warning.

In arriving at its decision, the commission also considered the employer's assertions that, prior to his discharge, the employee had deliberately failed to rotate jobs with his partner. However, while the employer indicated that it talked to the employee and his partner about rotating jobs in early April, two months prior to the discharge, the employee was never disciplined as a result and the evidence does not establish that the problem occurred thereafter. Moreover, the employee indicated that it was his understanding that his partner, who did not speak English, preferred to do the stacking job because the gun made his shoulder sore, and the co-worker in question did not appear at the hearing to offer any testimony to the contrary. Under all the circumstances, the evidence does not establish a pattern of deliberate failure to follow the employer's directions such as might warrant a finding of misconduct.

The commission, therefore, finds that in week 24 of 2002, the employee was discharged and not for misconduct connected with his employment, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 24 of 2002, provided he is otherwise qualified. There is no overpayment as a result of this decision.

Dated and mailed February 11, 2003
stewaar . urr : 164 : 9  MC 658

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

NOTE: The commission conferred with the administrative law judge about witness credibility and demeanor. The administrative law judge indicated that he did not believe the employee was genuinely concerned about safety, and felt he was using the broken cord as an excuse not to do his job. The administrative law judge based this assessment, in large part, on the fact that the employee had been talked to several times about rotating jobs with a co-worker, but had failed to do so. However, for the reasons set forth in the body of the decision, the commission finds the employee's testimony to be credible, and concludes that misconduct was not established.


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