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

HELEN M CASPER, Employee

BRAKEBUSH BROTHERS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02006072BO


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 four and a half years as a sanitation worker for the employer, a chicken processor. She was discharged for insubordination as the result of her actions on August 16, 2002 (week 33).

On or before August 16, 2002, the employee's leadworker, Susan Paredes, had communicated to her and to Lonnie, the employee's co-worker who shared certain of her responsibilities, that they needed to start scrubbing a conveyor belt by hand each day.

On August 16, 2002, the employee had not scrubbed the conveyor belt by hand but had washed it with a high-pressure hose and cleaning agents, and felt that the conveyor belt was clean. Paredes told the employee that she thought the conveyor belt was dirty. The employee thought that what the leadworker was perceiving as dirt was actually an area of the conveyor belt that had become rough and grooved from certain chemicals used for cleaning. Paredes directed the employee to scrub the belt by hand, but the employee told her that she didn't think that was going to work, and did not scrub the belt.

When the employee failed to scrub the belt after having been directed to do so, Paredes went to the office of James Held, the sanitation/shift manager to whom the employee's supervisors (Bauman and Germaine) reported, who told Paredes to have the employee come to his office. Paredes returned to the employee's work area and advised the employee that Held had directed that she come to his office. The employee testified at hearing that she told Paredes that Held should "come here because I had work to do."

When Held was told that the employee refused to come to his office, he came down to the employee's work area. Held and the employee met later, and he told her that she had been insubordinate to Paredes and to him. The employee was later notified that she was terminated because of this insubordination.

Serious bacterial problems can result from failure to clean the employer's chicken processing equipment properly; these bacterial problems could cost the employer $50,000 to $75,000 per hour in lost production; and the employer's sanitation workers are routinely asked to re-clean equipment.

The question to be decided is whether the employee's discharge was for misconduct connected with her 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 employee, 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 employee'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."

Although the record establishes that the employee, when first dealing with Paredes' directive to re-clean the belt, simply wanted her leadworker to take another look at what she perceived to be a dirty area, the record also establishes that the employee was at fault when the situation escalated. The employee testified that, after she was advised that Held, her supervisors' supervisor, wanted to see her in his office, "I said he could come here because I had work to do." This is insubordination pure and simple, a deliberate disregard of a standard of behavior the employer has a right to expect of one of its employees.

The employee appears to be arguing that the fact that she simply wanted Paredes and Held to inspect the belt militates against a finding that she was insubordinate. However, although she communicated this request for inspection to Paredes when Paredes first directed her to scrub the belt, this was not what she later communicated to Paredes when directed to go to Held's office. The employee testified that she told Paredes ". . .he could come here because I had work to do." This is not a request for inspection either express or implied.

Although the employee also argues that the fact that co-worker Lonnie also refused to scrub the belt by hand and was not disciplined as a result of this refusal demonstrates selective enforcement of the employer's expectations and standards of behavior, the evidence in the record to this effect is not only less than straightforward but is based on the employee's testimony of what Lonnie told her regarding a conversation Lonnie had with Paredes. This is unsubstantiated hearsay, which may not be used as the sole basis to support a finding of ultimate fact, there is no independent basis for concluding that it has any inherent reliability, and the commission declines to rely upon it.

The commission therefore finds that the employee was discharged in week 33 of 2002 for misconduct connected with her employment, within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employee was paid benefits in weeks 34 through 52 of 2002, and 1 through 11 of 2003, in the total amount of $6,851, for which she was not eligible and to which she was not entitled, within the meaning of Wis. Stat. § 108.03(1). Pursuant to Wis. Stat. § 108.22(8)(a), she 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), because although the overpayment 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).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 33 of 2002 and until seven weeks have elapsed since the end of the week of discharge and she has earned wages in covered employment performed after the week of discharge equaling at least 14 times her weekly benefit rate which would have been paid had the discharge not occurred. She is required to repay the sum of $6851 to the Unemployment Reserve Fund. The initial Benefit Computation (Form UCB-700),  issued on August 19, 2002, is set aside. If benefits become payable based on other employment, a new computation will be issued as to those benefit rights.

Dated and mailed April 4, 2003
caspehe . urr : 115 : 1 MC 640.06

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ James T. Flynn, Commissioner

NOTE: Although the commission conferred with the administrative law judge about witness credibility and demeanor, the commission's reversal of the appeal tribunal decision is not based upon a differing assessment of the credibility of the witnesses. The administrative law judge indicated that he didn't credit the employer's case because the leadworker Paredes wasn't called as a witness, and because co-worker Lonnie wasn't held to the same standard as the employee. However, the commission concludes that there was sufficient testimony, including that offered by the employee, to find misconduct here. Moreover, as concluded above, the evidence as to Lonnie's treatment is primarily unsubstantiated hearsay.

Repayment instructions will be mailed after this decision becomes final. The department will withhold benefits due for future weeks of unemployment in order to offset overpayment of U.C. and other special benefit programs that are due to this state, another 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 overpayment.


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