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

BRIAN L SEYDEL, Employee

MATERIAL MANAGEMENT GROUP INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02607054MW


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 for seven years, most recently as warehouse supervisor. His last day of work was July 3, 2002 (week 27).

On July 3, 2002, the employee's supervisor, the director of operations, notified the employee that he was dissatisfied with his performance and that his position was being eliminated. The employee was told that he was being demoted to a new warehouse position involving a pay cut of $2.65 an hour. The employee asked what his new duties would be. In answer, the director of operations took him to the warehouse, where he explained to the other workers that the employee would no longer be their supervisor, but that they would all be equals. The employee was told that he would continue with his current duties and would assist in training one of the warehouse workers in receiving. The operations director gave the employee a letter offering him the warehouse position, and asked him to think about the matter and accept or reject the position.

Later that day the employee reported to his supervisor's office and submitted a signed copy of the letter offering him the warehouse position. The employee said it was fine, but voiced objections to training the co-worker. The employee indicated he did not think it was fair that he had to train the co-worker when he was not a supervisor and expressed the opinion that this training should be done at "corporate." The employee was discharged for insubordination as a result of this discussion.

The issue to be decided is whether the employee's discharge was due to 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 it discharged the employee because he refused to train a co-worker. However, while the operations manager initially testified that the employee refused to train the co-worker, he subsequently indicated that the employee said he did not think it was fair he should be asked to do so. Consistent with the latter, the employee testified that he told the operations manager he thought it was unfair he should be asked to train the co-worker, but did not refuse to do so. The commission finds the employee's version of events to be credible, and it believes that his objections to being asked to train a co-worker after having been demoted from his supervisory position were neither unreasonable nor insubordinate.

The commission, therefore, finds that in week 27 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 27 of 2002, provided he is otherwise qualified. There is no overpayment as a result of this decision.

Dated and mailed May 28, 2003
seydebr . urr : 164 : 1  MC 640.03  MC 640.05

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner


NOTE: The commission conferred with the administrative law judge about witness credibility and demeanor. The administrative law judge had no specific recollections about the credibility of the respective witnesses. For the reasons noted in the body of the decision, the commission finds the employee's version of events to be credible.

cc: 
Attorney Michele A. Peters
Attorney John C. Patzke


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uploaded 2003/06/06