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


MICHAEL P BROWN, Employe

GROVE GEAR DIVISION, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 96600981RC


On February 1, 1996, the Department of Industry, Labor and Human Relations (department) issued an initial determination finding that the employe was discharged for misconduct connected with his employment. The employe timely appealed and a hearing was held before an administrative law judge. On March 18, 1996 the administrative law judge issued his appeal tribunal decision, reversing the initial determination, finding that the employe was discharged but not for misconduct connected with his employment within the meaning of section 108.04(5), Stats. The employer timely petitioned the commission for review of the adverse appeal tribunal decision.

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 approximately three years, as a machine operator, for the employer, a gear manufacturer. The employe's last day of work was January 8, 1996 (week 2). The employe was discharged on January 10, 1996 (week 2).

On January 8, 1996 Jason Therkelsen, a forklift driver, was trying to get the attention of a co-worker, Tom Lawrence. The employe saw this and stated "Tom, your buddy wants you." Therkelsen responded to the employe, "What did you say, motherfucker." The employe responded "You faggity ass little punk, you better shut up. I'm not in the mood." Therkelsen then began to repeat to the employe, "Hey tough guy" The employe told Therkelsen to "shut up". Therkelsen repeated "Hey tough guy" a dozen more times. The employe walked over to Therkelsen, who was sitting on a forklift and grabbed the front of Therkelsen's shirt and stated "You want some." The forklift moved a few inches forward and the employe then released Therkelsen.

The employe was discharged for violating two employer rules: "conduct with disregard to safety" and "use of foul or abusive language toward an employe."

The employer contends that the employe's discharge was for misconduct as a result of the altercation between the employe and Therkelsen. An employe who is discharged for misconduct is ineligible for benefits under section 108.04(5), Stats. Misconduct has been defined as an intentional and substantial disregard of an employer's interests or of the standard of conduct that an employer has a right to expect from its employes. Boynton Cab Co. v. Neubeck, 237 Wis. 249, 259 (1941). On the other hand, mere inefficiency, unsatisfactory conduct, inadvertence, ordinary negligence in isolated instances, or good faith errors in judgment or discretion are not misconduct. Eastex Packaging Co. v. DILHR, 89 Wis. 2d 739, 753 (1979). Nonetheless, an intentional violation of an employer's reasonable work rule or other deliberate acts, even though an isolated incident, may still form the basis for a finding of misconduct. McGraw-Edison Co. v. ILHR, 64 Wis. 2d 703, 713 (1974). Generally, it is misconduct when an employe uses physical force against another employe. However, past commission cases have found no misconduct where the employe was provoked. See Ellis v. Krusaval Steel Casting, Milwaukee County Case No. 569-259 10/20/82; Jerome R. Janusz v. A & E Manufacturing Co., (LIRC 8/20/92).

The administrative law judge concluded that the employe's discharge was not for misconduct despite the employe's confrontation with Therkelsen. The administrative law judge reasoned that while the employe clearly acted inappropriately, the incident was not so serious to warrant a misconduct finding, the employer must not have felt the confrontation was a serious disregard of its standards since the employer did not discipline Therkelsen for the incident and finally, the judge treated Therkelsen's repeated provocation of the employe as a mitigating factor.

Based upon the record adduced at the hearing, the commission reaches a different legal conclusion. The commission is not persuaded that Therkelsen's repeated statement "Hey tough guy" serves as a mitigating factor. Even though Therkelsen instigated the event, the employe's reaction was unreasonable. While Therkelsen may have taunted and annoyed the employe, he did not threaten or approach the employe. The commission also considered the employe's disregard of the employer's safety rules. The altercation did not just merely occur on the shop floor between the employe and Therkelsen. Rather, the employe grabbed Therkelsen who was sitting on a forklift, presumably with its engine operating. The employe could have caused injury to himself, Therkelsen, or an innocent bystander. Finally, even though Therkelsen did not receive the same type of discipline as the employe, the employer did consider Therkelsen's role in the altercation and disciplined him by placing a written statement in his personnel file.

Based on these circumstances, this isolated instance serves to form the basis for a finding of misconduct within the meaning of Boynton Cab Company v. Neubeck, supra. Despite the fact that Therkelsen instigated the incident, the employe's reaction was unreasonable and an intentional deviation from the employer's standard of conduct it had a right to expect of the employe. The employe's conduct was also a direct violation of the employer's reasonable work rules.

Therefore, the commission finds that in week 2 of 1996, the employe was discharged for misconduct connected with his employment, within the meaning of section 108.04(5), Stats.

The commission further finds that the employe was paid benefits amounting to a total of $3,596.00, for which he is not eligible and to which he is not entitled, within the meaning of section 108.03(1), Stats. Pursuant to section 108.22(8)(a), Stats., the employe is required to repay such sum to the Unemployment Reserve Fund.

The commission further finds that waiver of benefit recovery is not required under section 108.22(8)(c), Stats., because although the overpayment did not result from the fault of the employe as provided in section 108.04(13)(f), Stats., the overpayment was not the result of a department error. See section 108.22(8)(c)2., Stats. The employe is required to repay $3,596.00 to the Unemployment Reserve Fund.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employe is ineligible for benefits beginning in week 2 of 1996, 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.


Dated and mailed: May 24, 1996
brownmi.urr : 135 : 1 MC 668 MC 670

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ David B. Falstad, Commissioner

MEMORANDUM OPINION

The commission did not confer with the administrative law judge because it did not reverse on the basis of witness credibility or demeanor. Transamerica Ins. Co. v. ILHR Department, 54 Wis. 2d 272, 283-84 (1972). Rather, the commission reached a different legal conclusion upon essentially the same set of facts as found by the administrative law judge. Consequently, a credibility conference was not necessary.

Although the employe did not instigate the incident, the commission is persuaded that the employe's reaction was unreasonable and constituted an intentional deviation of the standard of conduct the employer had a right to expect of the employe.


[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]