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

WILLIAM H MIMIS, Employee

STROH DIE CASTING CO INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03605131MW

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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own, except that it makes the following modifications:

The first paragraph of the Findings of Fact and Conclusions of Law section is modified to read as follows:

The employee worked approximately four and one-half years for the employer, a job shop die caster, and was working as a machine operator on May 19, 2003 (week 21), his last day of work, when he was discharged from his employment.

DECISION

The decision of the administrative law judge, as modified, is affirmed. Accordingly, the employee is ineligible for benefits beginning in week 21 of 2003, and until seven weeks have elapsed since the end of the week of discharge and the employee has earned wages in covered employment performed after the week of discharge equaling at least 14 times the employee's weekly benefit rate which would have been paid had the discharge not occurred.

Dated and mailed January 8, 2004
mimiswi . umd : 115 : 2   MC 663

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The record shows that the employee was on warning that his work performance was unsatisfactory and would lead to further discipline, when, on January 28, 2003, he failed to properly engage a clamping slide mechanism which damaged a machine, and created 1910 defective parts because he did not carry out quality control inspections required after every 10 parts. The employee received a 3-day suspension for this conduct, and the related disciplinary report listed discharge as the next step in the disciplinary process. This progressive discipline sequence was also set out in the employer's handbook (exhibit #4), which the employee received on December 15, 1998.

The record also shows that, on May 3, 2003, the employee ran 160 defective parts because he failed to properly perform quality control inspections. In his testimony, the employee admits that the parts were defective because he failed to check a particular area on the parts as he was running them. The employee was discharged as a result.

Failure to meet performance standards, particularly after warning and an opportunity to improve, has been held to support a finding of misconduct. See, e.g., Holm v. Embassy Suites Hotel, UI Hearing No. 97607637MW (LIRC June 29, 1998) (failure of housekeeping inspector to properly inspect and report dirty hotel rooms was sufficiently wilful and substantial disregard of employer's interests to constitute misconduct); Dworschak v. Turkey Store Co., UI Hearing No. 00200016RL (LIRC May 24, 2000) (failure of customers to get product they ordered because employee made numerous errors in counting and in loading the wrong sized items was misconduct); Williams v. E & B Insulation LLC, UI Hearing No. 99200129LX (LIRC May 6, 1999) (employee's actions in repeatedly performing substandard work after warning evinced a sufficiently wilful and substantial disregard of employer's interests to constitute misconduct); Jones v. LIRC, Case No. 95-CV-008146 (Milw. Co. Cir. Ct., May 22, 1996)(employee's repeated failure to properly maintain retail store despite warning rose to level of intentional disregard of employer's interests).

The record does not show that the employee was incapable of performing his assigned machine operator duties, including related qualify control functions, or inexperienced in the performance of such duties. See, Zastrow v. Speedway Superamerica LLC, UI Hearing No. 99607213MW (LIRC Jan. 21, 2000) (inability to perform does not provide a sufficient basis for a finding of misconduct). In fact, it would have to be presumed, given the length of his employment, that he had generally performed his duties at a satisfactory level for a period of years.

Here, the employee's continued failure to properly carry out quality control inspections, resulting in the production of a large number of defective parts, after warning that his performance was unsatisfactory and his job in jeopardy as a result, was misconduct.

cc: 
International Association of Machinists & Aerospace Workers
Milwaukee, WI 53215-1726

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