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

RANDY J REEVES, Employee

GKN SINTER METALS INC (DEL), Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03606431MW


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 as an operator and performed some press adjusting duties over six months for the employer, a firm engaged in producing powdered metals. His last day of work was June 20, 2003, when he was suspended by the employer for throwing a part as a co-worker. On June 24, 2003 (week 26), he was notified of his termination for such conduct.

On the employee's last day, he was assigned to operate a machine and provide minor adjustments, if necessary. A co-worker who was performing adjusting duties observed that the light to his machine was on and went to his workstation. The co-worker informed the employee that his light was on. He responded that he already knew the light was on and asked the co-worker whether the co-worker didn't have something else to do. The co-worker, who had two dirty shop towels in his hands, threw them into his face from about 5 feet away. The employee had a metal hockey-puck like part, with sharp edges, in his hand. The employee waved his arms up, stepped back, and threw the part at the co-worker. The part struck the co-worker causing a cut on the co-worker's face. After an investigation, the employer terminated him for violation of the employer's policy against violence in the workplace.

The issue to be resolved by the commission is whether the employee was discharged for misconduct connected with his employment. 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' with in the meaning of the statute."

The commission finds that the employee deliberately threw the part at the co-worker. The employee was irritated at the co-worker for noting that the employee's light was on. The testimony of the co-worker indicated that the employee stepped back and threw the part. Such testimony was consistent with the process engineering technician's testimony that there was a pause between the co-worker throwing the towels at the employee and the employee throwing the part at the co-worker. Finally, the process engineering technician noted that the employee looked very angry when he threw the part.

In McGraw-Edison Co. v. ILHR Dept., 64 Wis. 2d 703 (1974), an employee and a co-worker were working on a press. The co-worker was sending dryer tops down a slide to the employee's station. The employee became upset when his finger was pinched between two dryer tops. The employee pushed a dryer top back towards the co-worker with the result that either that top, or another top struck by the pushed top, hit the co-worker cutting the co-worker severely in the arm. The Supreme Court noted the commission's finding that it was not established that the employee had any intention of injuring his co-worker or that he could have foreseen that his actions might result in injury to anyone. In rejecting the commission's finding that the employee's actions amounted to a single isolated instance of unsatisfactory conduct not rising to the level of misconduct the court stated:

"The conduct involved in this case was a single isolated incident. However, it was not minor or unintentional carelessness. [The employee] pushed the 10 pound, 14 ounce dryer top with sharp edges with sufficient force to cause a serious injury to [the co- worker]. Such conduct fits within the Boynton Cab Co. case's definition that  '...carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design...'  is misconduct under sec. 108.04 (5), Stats.

"[The employee's] conduct was not due to inefficiency or incompetency so as to fit him into the class of  'less capable workers' who are unemployed and for whom unemployment compensation may well have been designed. [The employee's] reaction to the pinched finger put a dangerous object in the air and thereby endangered the safety of anyone in its path. We think such conduct, as a matter of law, constitutes misconduct."

McGraw-Edison Co., at 713.

The co-worker's actions in throwing towels at the employee did not justify his conduct in throwing a metal part at the co-worker's face, thereby causing injury to the co-worker. The employee's actions constituted an intentional and substantial disregard of standards of behavior the employer had a right to expect of the employee.

The commission therefore finds that in week 26 of 2003 the employee was discharged from his employment and for misconduct connected with his work within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employee was paid benefits in the amount of $1,457.00 for weeks 26 through 29 and weeks 32 through 34 of 2003, for which the employee was not eligible and to which the employee was not entitled, within the meaning of Wis. Stat. § 108.03(1).

The final issue to be decided is whether recovery of overpaid benefits must be waived.

Wisconsin Statute § 108.22(8)(c), provides that the department shall waive the recovery of overpaid benefits if the overpayment was the result of departmental error, and the overpayment did not result from the fault of the employee. Under Wis. Stat. § 108.02(10e)(a) and (b), department error is defined as an error made by the department in computing or paying benefits which results from a mathematical mistake, miscalculation, misapplication or misinterpretation of the law or mistake of evidentiary fact, or from misinformation provided to a claimant by the department, on which the claimant relied.

The overpayment in this case results from the commission's reversal of the appeal tribunal decision. Such reversal was not due to department error as defined in Wis. Stat. § 108.02(10e)(a) and (b).

The commission further finds that waiver of benefit recovery is not required under Wis. Stat. § 108.22(8)(c), because although the overpayment did not result from the fault of the employee as provided in Wis. Stat. § 108.04(13)(f), the overpayment was not the result of a department error. See Wis. Stat. § 108.22(8)(c)2.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 26 of 2003, and until seven weeks elapse since the end of the week of discharge and the employee has earned wages in covered employment equaling at least 14 times the weekly benefit rate which would have been paid had the discharge not occurred. Department records reflect that the employee has requalified for benefits as of week 1 of 2004. The employee is required to repay the sum of $1,457.00 to the Unemployment Reserve Fund.

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 31, 2004
reevera . urr : 132 : 1 :  MC 670  MC 675 

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner


MEMORANDUM OPINION

The commission did consult with the ALJ who presided at the hearing regarding his impressions of witness credibility and demeanor. The ALJ indicated that he found the employee credible that he acted instinctively and not intentionally. The ALJ did not credit the testimony of the process engineering technician, as he was not looking directly at the participants. For reasons set forth in its decision, the commission disagrees with the ALJ's credibility assessment.


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