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

RANDY JACKSON, Employee

WENDY'S OLD FASHIONED HAMBURGERS, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03604868MW


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 approximately nine months as a crew person for the employer, a fast food restaurant. The employee's last day of work was May 4, 2003 (week 19), and the employer discharged him on May 5, 2003 (week 19).

The issue is whether the employee was discharged for misconduct connected with his employment.

On May 3, 2003, the employee prepared a food order for a drive-through customer, and co-worker Jennifer mistakenly gave this order to a different customer. The employee and Jennifer became involved in a verbal altercation regarding who was responsible for preparing a substitute order for the customer. The employee told Jennifer she had made the mistake so she should prepare the substitute order, and resumed sweeping the floor. Jennifer approached the employee and pushed his left shoulder hard enough that he temporarily lost his balance. While he was recovering his balance, the employee "thumped" the top of Jennifer's head with the handle of the broom he was holding.

The employee and Jennifer had previously had verbal conflicts for which the employer had counseled them.

The employee and Jennifer were both discharged for their participation in the May 3 incident.

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' within the meaning of the statute.

Generally, it is misconduct when an employee uses physical force against another employee. Brown v. Grove Gear Division, UI Hearing No. 96600981RC (LIRC May 24, 1996). It has been uniformly held that a worker who engages in a physical assault on a co-worker may be discharged for misconduct even though there may have been some provocation. Rogers v. Wisconsin Knife Works, Inc., UI Hearing No. 99001884JV (LIRC July 30, 1999), citing Relerford v. G.M. Assembly Division Janesville General Motors, et al., Case No. 139-434 (Dane Co. Cir. Ct. March 20, 1975). The commission has carved out a limited exception when an employee reasonably concludes that there is an imminent threat of physical harm, he is unable to escape and there is no one in the area who could render assistance to him, and he acts to defend himself as a result. See, Rogers, supra.; Robertson v. Mahler Enterprises, Inc., UI Hearing No. 03604155mw (LIRC Oct. 31, 2003).

The record does not show that the employee was cornered or unable to remove himself from the situation; that there was no one in the area who could render assistance to him, i.e., there were three other employees in the vicinity, including a manager; or that he was acting to defend himself from further physical contact.

The commission concludes that the employee's participation in this physical altercation with a co-worker justifies a conclusion of misconduct, and is the type of egregious action which does not require prior warning.

The commission therefore finds that, in week 19 of 2003, the employee was discharged for misconduct connected with his employment within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employee was paid benefits in the amount of $4,943 for which the employee was not eligible and to which the employee was not entitled, within the meaning of Wis. Stat. § 108.03(1), and that waiver of this overpayment is not merited since the initial award of benefits was not based on department error but instead on a differing interpretation of the applicable law.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 19 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. The employee is required to repay the sum of $4,943 to the Unemployment Reserve Fund. The initial Benefit Computation (Form UCB-700), issued on October 7, 2003, is set aside. If benefit payments become payable based on other employment, a new computation will be issued as to those benefit rights.

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 employee 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 5, 2004
jacksra . urr : 115 : 2  MC 670

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

NOTE: The commission did not confer with the administrative law judge before reversing his decision, because its reversal was not based upon a differing view as to the credibility of witnesses, but instead upon a differing conclusion as to what the hearing record in fact established and upon a differing interpretation of the relevant law. The administrative law judge relied on the employee's testimony that he struck Jennifer as "a reflex" or "a reaction" to her shoving him in concluding that the evidence did not establish that the employee's action "was premeditated or violent," and did not demonstrate misconduct as a result. However, certainly, striking a co-worker on the top of the head with a broom handle is violent. Moreover, the employee does not maintain that he lost control of the broom handle and it accidentally struck Jennifer when he was trying to regain his balance. Instead, the evidence of record shows that the employee intentionally struck a co-worker on the head with a broom handle in reaction to being shoved by her. Whether he developed a plan to do so, or struck out at her without contemplating the consequences is, in the absence of some showing that the employee was unable to control his actions, not controlling here.

cc: 
Wendy's Old Fashioned Hamburgers, Milwaukee, WI 53212
Continental Consultants


NOTE: Repayment instructions will be mailed after this decision becomes final. The department will withhold benefits due for future weeks of unemployment in order to offset overpayment of U.C. and other special benefit programs that are due to this state, another state or to the federal government.

Contact the Unemployment Insurance Division, Collections Unit, P.O. Box 7888, Madison, WI 53707, to establish an agreement to repay the overpayment.



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