CHARLES G HOLSAPLE, Employee

TRIENDA, 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, and after consultation with the ALJ, the commission makes the following:

The employee worked for 14 years as a material handler for a plastics manufacturing business. His last day of work was November 7, 2002 (week 15).

Approximately a month before the employee's last day of work, the employer changed the way it handled scrap. It was seeking greater inventory control. Pallets were to be weighed empty and then loaded with scrap and reweighed. The scrap weight was determined by the difference.

The employee was weighing scrap on November 5, when the materials manager observed that the pallet showed no unloaded weight. She instructed him to unload the pallet and weigh it. He argued and told her it was dumb to do it that way. She observed him a short time later weighing a single piece of scrap with the intention of multiplying that weight by all the pieces on the pallet. The materials manager again directed him to weigh the empty pallet, which after further dispute, he did. The manager asked him to speak with her after his shift the following day. The employee failed to show up. He was called into a meeting with management on November 7, to discuss his conduct. He told them that he thought the material manager's method for weighing scrap was dumb but he invited them to write him up so that he could return to work. They suspended his employment and discharged him the next day for insubordination.

The issue is whether the employee's discharge was for misconduct connected with his employment.

In Boynton Cab Co. v. Neubeck & Ind. Comm., 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' with in the meaning of the statute."

The employee had a 14 year tenure without any apparent discipline problems. Given that this was a single incident and he was not belligerent or blatantly disrespectful to the manager during it, the commission concludes that the employee was guilty of a single instance of poor judgment rather than a deliberate and substantial disregard of the employer's interests.

The commission therefore finds that in week 15 of 2002, the employee was discharged from his employment but not for misconduct connected with his work within the meaning of Wis. Stat. § 108.04(5).

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

Dated and mailed August 5, 2003
holsach . urr : 178 : 1  MC 640.03

David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

The commission discussed witness credibility with the ALJ before deciding to reverse. The ALJ did not believe that the facts were in dispute and the commission agrees. However, the commission reaches a different conclusion as to the employee's intent and the seriousness of his initial refusal to carry out his supervisor's instructions. The commission determines that this single instance of poor judgment does not rise to the level of deliberate misconduct.

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uploaded 2003/08/12