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


DAVID W ROEBEN, Employe

KRAFT FOODS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 97005891MD


On November 28, 1997, the Department of Workforce Development issued an initial determination which held that the employe's discharge was not for misconduct for unemployment insurance purposes. The employer timely requested a hearing on the adverse determination, and hearing was held on January 13, 1998 in Madison, Wisconsin before a department administrative law judge. On January 16, 1998, the administrative law judge issued an appeal tribunal decision affirming the initial determination. The employer timely petitioned for commission review of the adverse appeal tribunal decision, and the matter now is ready for disposition.

Based upon the applicable law and the records and other evidence in the case, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe in this case worked approximately 20 months as a checker and packer for the employer, a food processor. His last day of work was November 11, 1997; he was suspended at that time and subsequently discharged on November 14, 1997 (week 46). The issue is whether the employe's discharge was for misconduct for unemployment insurance purposes. The commission believes that it was, and so reverses the appeal tribunal decision.

On the evening of his last day of work, the employe was attending a quality control meeting at which time he began strenuously protesting some of the employer's procedures. The employe used serious and unwarranted profanity at least three times during his initial outburst. A general supervisor told the employe to calm down. At this point another supervisor said something about the problem the employe had complained about; the employe again began swearing, at which point the general supervisor told the employe to go to his (the supervisor's) office. The employe responded by telling the supervisor to get him a fucking steward and that then they could go to the supervisor's fucking office. A co-worker then responded to the supervisor's suggestion regarding the loading problems the employe had complained about; the employe asked her why she was sticking up for those fucking assholes. The employe then was suspended, and discharged a couple of days later.

Misconduct for unemployment insurance purposes is the intentional and substantial disregard by an employe of standards an employer reasonably may expect of its employes. See Boynton Cab Co. v. Neubeck, 237 Wis. 249, 259-60, 296 N.W. 636 (1941). The employe's outburst meets this standard. The employe continued using serious profanity even after having been instructed to calm down, and again after having been instructed to remove himself from the situation. This occurred in the private sector, and was without provocation. The commission has found instances of vulgarity less severe than this employe's, to constitute misconduct for unemployment insurance purposes. (1) Recently, the commission also found misconduct in Kneubuhler II v. LIRC, No. 96001045MD (LIRC, 7-12-96). In that case, the employe told his supervisor that the supervisor did not know "what the fuck" he was talking about; this remark, and the employe's otherwise belligerent attitude, constituted misconduct for unemployment insurance purposes. In this case, the employe's statements went beyond those of the employe in the Kneubuhler II case.

The commission therefore finds that, in week 46 of 1997, the employe was discharged for misconduct connected with his employment, within the meaning of Wis. Stat. § 108.04(5). The commission also finds that the employe was paid benefits totaling $4,011.00 for weeks 47 of 1997 through 9 of 1998, for which he was ineligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03(1). Pursuant to Wis. Stat. § 108.22(8)(a), he must repay such sum to the Unemployment Reserve Fund. The commission finds, finally, that waiver of benefit recovery is not required under Wis. Stat. § 108.22(8)(c). Although the overpayment did not result from employe fault as provided in Wis. Stat. § 108.04(13)(f), the overpayment also was not the result of departmental error. See Wis. Stat. § 108.22(8)(c)2.

DECISION

The appeal tribunal decision is reversed. Accordingly, the employe is ineligible for benefits beginning in week 46 of 1997, and until seven weeks have elapsed since the end of the week of discharge and he has earned wages in covered employment performed after the week of discharge equaling at least 14 times his weekly benefit rate which would have been paid had the discharge not occurred. He must repay $4,011.00 to the Unemployment Reserve Fund. Department form UCB-700, issued on December 10, 1997, is set aside.

For purposes of computing benefit entitlement, base period wages from work for the employer prior to the discharge shall be excluded from any computation of maximum benefit amount for this or any later claim. If the employe was also paid base period wages from work by other covered employers, the excluded wages shall be used to determine benefit eligibility. However, any benefits otherwise chargeable to a contribution employer's account shall be charged to the fund's balancing account.

Dated and mailed: March 19, 1998
roebeda.urr : 105 : 1   MC 640.15  MC 668

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner


NOTE: The commission did not confer with the administrative law judge before determining to reverse the appeal tribunal decision in this case. The commission does not disagree with the administrative law judge's factual findings; the administrative law judge also found that the employe engaged in the conduct alleged. The administrative law judge reasoned, though, that while the employer was justified in imposing some discipline, yet it was not justified in immediately discharging the employe. This is a legal conclusion which, in the context of the facts of this case, the commission disagrees with. The employe simply went too far in his comments, and the commission believes they constitute misconduct for unemployment insurance purposes.

cc: SHARON CAPACIO
OSCAR MAYER FOODS


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Footnotes:

(1)( Back ) Reilly v. Aluminum Goods Mfg. Co., (Wis. Cir. Ct. Dane County Feb. 8, 1954), 11 Wisconsin Unempl. Ins. Repts. (CCH) 8221 (APP-5)(court affirmed commission conclusion that employe's single outburst to supervisor in which she called him "god-damn bastard," was misconduct); Luse v. Mid-City Foundry Company & Ind. Comm., (Wis. Cir. Ct. Dane County Dec. 18, 1963), 11 Wisconsin Unempl. Ins. Repts. (CCH) 8388 (APP-8, 9)(court affirmed commission's decision that employe's single outburst to supervisor described in the court's decision as having been "Oh, fuck you" was misconduct); Lathrop v. DILHR & Presto Products, (Wis. Cir. Ct. Dane County Mar. 12, 1979), 11 Wisconsin Unempl. Ins. Repts. (CCH) 8943 (APP-12)(court affirmed commission's decision of misconduct where employe told supervisor "stick it in your ass"); Stribling v. LIRC and Reinhart Foods, Inc., No. 95-CV-006424 (Wis. Cir. Ct. Milwaukee County Mar. 22, 1996), (APP-16)(court affirmed commission's conclusion that employe's outburst, repeatedly and loudly calling his supervisor a "fucking liar," was misconduct).