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

ANDY A BOUCHER, Employee

WAL MART ASSOCIATES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02404831AP


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 three months as an overnight stock person for the employer, a discount retail store. His last day of work was on December 3, 2002 (week 49).

On December 2 the employee was at work asking another associate a question. The assistant manager approached the employee upset and red in the face, and asked the employee to come to the assistant manager's office. The assistant manager told the employee that he was not doing his job. The employee disagreed responding that he had been asking the associate a question. The employee stated that the assistant manager was an asshole in the way the assistant manager treated the workers. The assistant manager told the employee that he was suspended, told to go home and to come back to work the next day.

On December 3 the employee was informed that he was discharged for being insubordinate towards the assistant manager on December 2.

The issue to be decided is whether the employee's actions, which led to the discharge by the employer, constituted misconduct connected with the 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 commission finds that the employee made a poor attempt to express his concern for the manner in which the supervisor treated subordinates. The employee could have chosen a more tactful method to express his opinions. However, this one-time error in judgment did not rise to the level of an intentional, willful, and substantial disregard of the employer's interests.

The commission therefore finds that in week 49 of 2002 the employee was discharged but not for misconduct connected with his work 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 49 of 2002, if he is otherwise qualified. There is no overpayment with respect to this issue.

Dated and mailed August 20, 2003
bouchan . urr : 132 : 1 : MC 640.05

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner


MEMORANDUM OPINION

The commission did consult with the ALJ who presided at the hearing regarding her impressions of witness credibility and demeanor. The ALJ indicated that she could not recall the hearing or the parties.

cc: 
Wal-Mart Associates, Inc. (Bentonville, AR)
Wal-Mart Associates, Inc. (Marinette, WI)


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uploaded 2003/08/25