JAMES W JERSTAD, Employee

WARREN INDUSTRIES INC, Employer

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:

The employee worked almost five years as a truck driver for the employer, a packaging firm.

Three to three and a half years before the separation at issue here, the employer had required certain of its staff, including the employee, to wear hairnets for a period of time. The employee considered the hairnets provided by the employer at that time to be uncomfortable and itchy.

The employee received a written warning for insubordination on April 26, 2002.

On August 14, 2002, the employer, at the request of a customer, based on food contamination concerns, had instituted a requirement that certain staff, including the employee, wear a hairnet.

On August 14, the employee arrived at 2:45 pm for his 3 pm shift. When the employee learned about the hairnet requirement, he objected, became angry, and said, "Fuck this bullshit, I'm not punching in, I'm going home." Supervisor John Kirchenberg tried to stop the employee from leaving, but the employee threw up his arms, said, "Fuck this shit," and walked away. The employee did not punch in for his shift, left the work site, phoned the employer from his cell phone, and advised the employer that he would not be in to work that day but did not give a reason for his absence.

The other workers complied with the new hairnet policy without incident.

On August 15, the employee reported to the work site bringing with him a hairnet that he had purchased that he felt was more breathable and comfortable, and was advised by the employer that he no longer had a job.

The first issue to be decided is whether the employee quit or was discharged. The commission interprets the employee's actions in walking off the job before his shift because he was angry about a reasonable work requirement, even after being urged to stay by supervisor Kirchenberg, as an action initiated by the employee which was inconsistent with the continuation of the work relationship. The fact that the employee phoned the employer a few minutes later to report that he would be absent for his shift was a transparent attempt by him to cast his actions in a different light. The commission concludes that the employee quit his employment with the employer by his actions on August 14. The commission also concludes that this quit does not meet any of the statutory exceptions which would permit the payment of benefits. The only exception arguably relevant here would be that relating to actions attributable to the employer, and the only action of the employer arguably relevant here would be the requirement that the employee wear a hairnet. Given that the employee handled food for a client that had requested that hairnets be worn as a precaution against food contamination, it is concluded that this requirement was a reasonable one insufficient to justify invoking the exception.

The commission notes that, even if, as the employee has asserted, the separation is more appropriately characterized as a discharge, the record supports a finding of misconduct. In response to a seemingly benign and reasonable requirement, the employee became enraged, used profanity in front of his supervisors and co- workers, and left the work site. The commission has found misconduct in other cases which share common factual elements with this case: Kneubuhler v. Oscar Mayer Foods Corp., UI Hearing No. 96001045MD (LIRC July 12, 1996), (the employee overheard a conversation between a co-worker and a supervisor relating to the employee's performance of certain job duties, interrupted the conversation, demanded to know how the supervisor knew about these things, said that the supervisors were trying to conjure something up and were after him, told another supervisor who had walked up in the meantime to stay out of his business, and said to his supervisor, after the supervisor told the employee to listen, "No, you listen to me because you don't know what the fuck you're talking about."); Benites v. Amcast Automotive Cedarburg Plant, UI Hearing No. 97606983WB (LIRC March 27, 1998) (the employee, acting as a union rep for another worker, told supervisors to "shut up," said "fuck you" to a secretary, and instructed the worker to defy the supervisors by leaving the work site instead of undergoing an alcohol screen); Williamson v. Wendys Old Fashioned Hamburgers, UI Hearing No. 01602441EC (LIRC July 12, 2001) (the employee expressed his unhappiness that the manager was late for a staff meeting and, when the director of area operations told him that there was no place in the restaurant for that kind of attitude, the employee said to the director, "You can just fuck off."); Roeben v. Kraft Foods, Inc., UI Hearing No. 97005891MD (LIRC March 19, 1998)(the employee strenuously protested some of the employer's policies at a quality control meeting, used profanity several times before being directed by his supervisor to go to the supervisor's office, and responded by telling the supervisor to get him a "fucking steward" and that then they would go to the supervisor's "fucking office"); Willis v. Dots Inc., UI Hearing No. 99608510MW (LIRC Feb. 24, 2000)(the employee refused to discontinue a personal call despite repeated directions from her supervisor to do so and swore at her supervisor, said she was not going to "kiss" her supervisor's "ass," and said she was going home which she did).

The commission therefore finds that, in week 33 of 2002, the employee quit his employment with the employer, but not with good cause attributable to the employer or for any other reason constituting an exception to the quit disqualification in Wis. Stat. § 108.04(7)(a).

The commission further finds that the employee was paid benefits in weeks 33 through 46, 48, and 52 of 2002, and 1 of 2003, in the total amount of $3129, 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).]

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 33 of 2002 and until four weeks have elapsed since the end of the week of quitting and he has earned wages in covered employment performed after the week of quitting equaling at least four times his weekly benefit rate which would have been paid had the quitting not occurred. He is required to repay the sum of $3129 to the Unemployment Reserve Fund.

Dated and mailed April 8, 2003
jerstja . urr : 115 : 1   VL 1007.01  MC 640.15

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ James T. Flynn, Commissioner

NOTE: The commission conferred with the administrative law judge about witness credibility and demeanor. The administrative law judge indicated that he gave the employee "the benefit of the doubt" as to his representation that he had left work ill on August 14, and that he didn't credit supervisor Kirchenberg's testimony as to the employee's conduct on August 14 because it was his impression that Kirchenberg may not have been present for the entire incident. However, the evidence of record does not cast doubt on Kirchenberg's presence during the August 14 incident, and Kirchenberg's testimony as to the employee's statements and actions during the incident were essentially unrebutted and do not support a conclusion that the employee left the work site because he was ill.

Contact the Unemployment Insurance Division, Collections Unit, P.O. Box 7888, Madison, WI 53707, to establish an agreement to repay the overpayment.

[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]

uploaded 2003/04/21