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


MILDRED E WIESE, Employe

STRAMAS RESTAURANT INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 97005328WU


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 the applicable law, records and evidence in this case, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked about three years as a cook for the employer, a small restaurant, while that restaurant was owned by several different groups of individuals. She worked for the new owners for approximately three months, ending on October 8, 1997 (week 41), and she was discharged shortly thereafter.

The employer was concerned about working relationships within the restaurant and posted policies with regard to teamwork and positive attitude shortly before the employe's last day of work. The employe was also cautioned on occasion to calm down and speak more quietly at work.

On the morning of October 8, a confrontation occurred, involving the employe and a waitress. The waitress placed a bowl of potatoes near a steam table and the employe moved the bowl while she was preparing other food. The waitress then referred to the employe as a "bitch". The employe responded that she was no more a "bitch" than was the co-worker. The employe also complained to a supervisor about the comment. She was told to calm down. The employe then demanded that the supervisor send the other worker home. Shortly thereafter, the co-worker walked past the employe and jabbed the employe in the side with her elbow. The employe complained to the supervisor about that incident, again in a tone of voice of which the supervisor disapproved.

After discussing the incident among themselves, and with their attorney, the owners of the business decided to discharge both of the workers involved so as to avoid the possibility of future conflicts in the workplace.

The issue to be resolved is whether the employe's discharge was for misconduct connected with her work.

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 insurance 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."

The employer argued that the employe was guilty of misconduct because she had previously been reminded about the employer's interests in civility amongst the workers. The commission disagrees. The employe did not retaliate physically or verbally to an unprovoked attack by a co-worker. Instead she complained to her supervisor. The supervisor's response was to tell her to calm down. If the employe was not calm, it was not unreasonable given the harassment she was receiving. The record does not reflect an unreasonable reaction to the provocation.

The employer might have made a reasonable business decision to dissociate from both workers but there is no evidence to support that the employe's conduct in this matter involved any serious fault.

The commission therefore finds that in week 41 of 1997, the employe was discharged but that her discharge was not for misconduct connected with the work for the employer, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employe is eligible for benefits beginning in week 41 of 1997 if otherwise qualified.

Dated and mailed: March 20, 1998
wiesemi.urr : 178 : 7 MC 668 MC 670

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

The commission did not consult with the appeal tribunal prior to reversing. The commission makes no differing credibility assessments and accepts the ALJ's factual findings. However the commission reaches a different legal conclusion when applying the law to those undisputed facts.


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