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

MICHAEL J SKAVLAND, Employee

OLDENBURG GROUP INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02608860MW


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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employee is eligible for benefits, if otherwise qualified.

Dated and mailed April 4, 2003
skavlmi . usd : 115 : 1  MC 688.1 MC 665.04  MC 699.05  MC 610.06 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ James T. Flynn, Commissioner

MEMORANDUM OPINION

The employee worked 11 years as a machinist for the employer, a commercial light manufacturer.

The employee was given a final written warning on January 25 which advised him that any further conduct of the type described, i.e., spreading untrue information not promoting a positive perspective as to the skill grid pay system, and displaying a negative attitude, would result in immediate termination. By its own admission, the employer believed that the employee engaged in such conduct on February 21, March 22, June 13, and August 23. However, the employer apparently did nothing to address it on those occasions other than to counsel the employee. It would have to be concluded as a result that the employee was not provided sufficient notice that his job was actually in jeopardy. Hainz v. Nelson Industries, Inc., UI Hearing No. 00003095MD (LIRC Oct. 3, 2000);  Marcolini v. Alma Public Schools, UI Hearing No. 78-20774EX (LIRC May 29, 1979).  Moreover, the final incident precipitating the discharge occurred on September 9 but the employer introduced only hearsay (and double hearsay) evidence as to what occurred. The employee testified that he simply asked a friend and coworker his opinion of the skill grid pay system and agreed with this worker when he said that he thought it was a bad idea. This is the only competent evidence as to what occurred on September 9 and would not support a finding of misconduct. This is to be distinguished from the situation in Merkel v. LIRC and Teach 'n' Toys, d/b/a The Learning Shop, Case No. 02 CV 002912 (Milw. Co. Cir. Ct., Oct. 30, 2002) in which the court upheld the commission's conclusion that the employee engaged in misconduct, after she had been counseled against sharing with other employees her challenges to decisions of management, when she emailed to 20 other employees and managers her criticism of a statement made by an owner of the employer relating to the decision to close shopping malls in reaction to the September 11 terrorist attack. In the instant case, the employee spoke to only one other worker and simply agreed with that worker's opinion as to the new skill grid system. The level of criticism and the scope of publication do not compare to that in Merkel.

The commission agrees with the administrative law judge that the employee's actions were not sufficiently egregious to rise to the level required for a finding of misconduct.

 


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uploaded 2003/04/11