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

STEPHANIE M WHITE, Employee

ARA CORY REFRESHMENT SERVICES, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03600041MW


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 ineligible for benefits beginning in week 42 of 2002, and until seven weeks have elapsed since the end of the week of discharge and the employee has earned wages in covered employment performed after the week of discharge equaling at least 14 times the employee's weekly benefit rate which would have been paid had the discharge not occurred.

Dated and mailed May 9, 2003
whitest . usd : 115 : 1  MC 640.03  MC 640.05 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ James T. Flynn, Commissioner

MEMORANDUM OPINION

The administrative law judge found the employer's version of what occurred during the October 17 meeting more credible than the employee's. The contemporaneous memo created by the employer (exhibit 1) lends support to this finding. The commission, after a thorough review of the hearing record, agrees with the administrative law judge's credibility determination in this regard.

The question then becomes one of deciding whether this instance of insubordination would support a conclusion of misconduct. Generally, refusal to follow a reasonable employer directive is misconduct, but a single isolated incident of disobedience is not misconduct if the employee has a defensible reason for it. Bauer v. Fisher, UI Hearing No. 99003155 MD (LIRC Jan. 31, 2000) (the commission found misconduct where the employee, after receiving a July 6 warning for arguing with his supervisor about a work assignment, refused on July 16 to follow his supervisor's directive to perform a task at a particular job site); Erickson v. LIRC and Create-Ability, Inc., Case No. 96-CV-2819 (Dane Co. Cir. Ct., Aug. 7, 1997) (misconduct has been shown where the employee's action in signing a lease when he had been instructed not to do so until the required addendum was added was in direct contravention of management instructions he had been given); Casper v. Brakebush Brothers, UI Hearing No. 02006072BO (LIRC April 4, 2003)(employee's insubordinate refusal to go to her second-level supervisor's office when instructed to do so by her supervisor was misconduct); Rudolph v. Ort Transportation Inc., UI Hearing No. 00403230AP (LIRC Feb. 13, 2001)(the employee trucker's refusal to take an assigned load to Chicago was an intentional and substantial disregard of the employer's interests); Griffin v. Bally Total Fitness Corp., UI Hearing No. 98608129MW (LIRC March 17, 1999)(the employee's refusal to perform his assigned duties in accordance with new employer policy, i.e., to spend only one hour a day away from his reception desk to check membership applications, was such a wilful and substantial disregard of the employer's interests as to constitute misconduct); Depeau v. Moore North America Inc., UI Hearing No. 99400659GB (LIRC Sept. 23, 1999)(employee's refusal to comply with the employer's reasonable request that he report to the human resources office, even though the employee was upset about the decision that had been made in a previous meeting with human resources, was not justified and, as a wilful refusal to carry out a direct instruction, constituted insubordination and an intentional and substantial disregard of the employer's interests and of standards of behavior the employer had a right to expect of the employee); Gipson v. Marian Catholic Center, Inc., UI Hearing No. 98601313MW (LIRC March 17, 1999)(to justify refusing a work directive, an employee must show that she presented the justification for her refusal to the employer, and, citing Nordberg Mfg. v. DILHR and Morgan, Case No. 145-359 (Dane Co. Cir. Ct., July 16, 1975), an employer need not first resort to some lesser degree of discipline than discharge merely because the conduct was the first offense, even when the employer has a progressive disciplinary policy).

Here, during the October 17 meeting, the employee repeatedly made it clear to the employer, despite having received previous warnings, including a final warning, about the unsatisfactory attitude she displayed toward others at work, that she did not intend to do her part to create and maintain workplace harmony despite being directed to do so; and prevented the employer from communicating and explaining its expectations in this regard to her. The employee has failed to show that she had a defensible reason for this insubordinate conduct, and the commission concludes as a result that the employee engaged in misconduct.

cc: ARA/Cory Refreshment Services (Milwaukee, Wisconsin)


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