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

WILLIAM B JACKSON, Employee

ULTRA MART FOODS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03000827MW

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 a year and a half for the employer, a grocery store. His last day of work was December 30, 2002 (week 1 of 2003).

The issue is whether the separation was a quit or a discharge, and whether it occurred under circumstances, which would permit the payment of benefits.

The employee was hired as an assistant produce manager. He received a written warning on 1/27/02 for failing to properly arrange a bulk onion display. The employee never received the message, which the employer alleges had been left for him by the manager, assigning him to perform this task

The employee received a 2-day suspension on 4/23/02 for failing to restock a strawberry display. The employee was on loan from another store at the time and was functioning not as an assistant manager but as a produce clerk. It was the responsibility of other staff to order or otherwise obtain more strawberries when it was apparent that the produce department was going to run out in a few hours' time, but they failed to do so. The employee continued to restock the strawberry display until the strawberries ran out around 6 p.m. The employee's shift ended that day at 8:30 p.m. As the result of this incident, the employee was transferred from his position as assistant produce manager, to a position as a dairy/frozen foods clerk.

The employee received a written warning on 8/7/02 for failing to complete a list of tasks he had been assigned that day. The employee worked to the best of his ability that day, and completed 90% of the items on the list before his shift ended.

The employee received a 3-day suspension on 10/25/02 for not properly rotating the dated milk containers. The employee's suspension report indicated that the employee would be "subject to termination" if the incident should occur again.

The employee received a 3-day suspension on 11/25/02 for stating to a supervisor, "What am I, your nigger back here?", when asked to perform some cleaning duties. The employee's suspension report for this incident did not indicate what future consequences would be.

The employee was terminated on 12/30/02 for taking five hours to complete a task that the employer believed should have taken him no more than two hours. Workers on a previous shift had not properly completed their tasks, and it took the employee longer as a result to complete the "splitting" of the milk because he had to operate around the crates they had left behind;  because of the holiday, it was an unusually large shipment that day; and the cold in the dairy case was causing the employee problems with his feet and hands which made the work more difficult for him, and the store manager was aware of this fact since he had actually taken the employee to the hospital one day because of this problem.

Even if the employer had proved that the employee's previous actions were worthy of discipline, it did not prove that he engaged in conduct meriting further discipline after his 3-day suspensions. An employer is required to show that an employee engaged in some other blameworthy conduct after discipline is imposed in order to prove that the employee was discharged for misconduct. Bebo v. Schindler Elevator Corp., UI Hearing No. 02609535MW (LIRC April 11, 2003); Rash v. Maynard Steel Casing Co., UI Hearing No. 00606694MW (LIRC Dec. 5, 2000). Specifically, the employer did not successfully rebut the employee's explanations for taking longer than usual to do the milk splitting on 12/30/02. Since this was the only incident occurring after the previous suspensions cited by the employer as a basis for the discharge, the employer failed to sustain its burden to prove misconduct.

The commission concludes that, in week 1 of 2003, the employee did not voluntarily terminate work with the employer within the meaning of Wis. Stat. § 108.04(7)(a); but was discharged, within the meaning of Wis. Stat. § 108.04(5), and this discharge was not for misconduct connected with the employee's work.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 1 of 2003, if otherwise qualified.

Dated and mailed December 4, 2003
jackswi . urr : 115 : 1 MC 665.01  MC 688.1   MC 699.05 

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner


MEMORANDUM OPINION

The commission did not consult with the administrative law judge before reversing his decision because this reversal does not depend on a different conclusion as to credibility but instead on a different conclusion as to what the evidence of record actually shows, i.e., it is not necessary to determine which party's version of the events which occurred on 12/30/02 is more credible since the employer did not dispute the employee's assertions regarding the presence of the crates, the size of the shipment, or his physical condition.

cc: 
Ultra Mart Foods (Germantown, Wisconsin)
Samuel Butler

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