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


WENDY M GARRETT, Employe

VIRGINIA NURSING HOME, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 95605230WK


On August 19, 1995, the Department of Industry, Labor and Human Relations issued an initial determination which held that the employe's discharge was not for misconduct connected with her employment. The employer timely appealed the adverse initial determination, and hearing was held on September 25, 1995 in Milwaukee, Wisconsin before a department administrative law judge. On September 26, 1995, the administrative law judge issued an appeal tribunal decision affirming the initial determination of no misconduct. The employer timely filed a petition for commission review of the adverse appeal tribunal decision, and the matter is ready for disposition.

Based on the applicable law and the records and evidence in this case, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked approximately eight months as a certified nursing assistant for the employer, a nursing home. Her last day of work was July 28, 1995 (week 30), at which time the employer discharged her for an alleged threat against the employe's supervisor. The commission must conclude that the employe's remarks in question are most reasonably construed as a threat against her supervisor, and that the statements as such were misconduct for unemployment compensation purposes. The commission therefore reverses the appeal tribunal decision.

The employe and her immediate supervisor apparently had a personality conflict. The employe (and some of the employer's other certified nursing assistants) had complained to the employer's director or nursing about what they considered to be unfair treatment from the supervisor. In any event, the conduct for which the employe was discharged was a series of remarks she made on the morning of July 21, 1995. The employe and some co- workers were discussing the county fair they intended to attend that weekend. The employer's nurse manager heard the employe say that it sounded like Kay (the employe's supervisor) was going to the fair after all. The employe then stated: "It would be nice to see her at the fair because I can finally get back at her for riding my ass all the time and there's nothing that can be done with me because it will not be happening at the place where I work." The employe then said that it would be outside the facility and no one would be able to do anything to her. The employer learned of the employe's remarks and investigated the matter. The employer concluded that the employe's remarks were a threat against the employe's supervisor, and discharged the employe therefor on July 28, 1995 (week 30).

Misconduct connected with employment, within the meaning of sec. 108.04(5), Stats., is the intentional and substantial disregard by an employe of standards of conduct an employer reasonably may expect of its employes. The commission believes the employe's remarks meet this standard. As indicated above, the commission conferred with the administrative law judge before determining to reverse the appeal tribunal decision. The administrative law judge had reasoned that the employe's remarks were ambiguous, and that they could have been interpreted to mean only that the employe wished to speak with her supervisor at the fair. The commission believes, however, that the remarks are more reasonably interpreted as a threat against the supervisor. First, the employe could have spoken with her supervisor at the workplace. For this reasons, the commission cannot interpret the employe's statement as only a desire to speak with her supervisor. Second, after the employe made the remarks in question, co-workers were discussing them and indicating that "it would really be something to see what would happen at the fair that weekend." The employe's co-workers thus thought the employe's remarks were a threat against the supervisor. Third, the employer reasonably construed the remarks as a threat against the supervisor. That is the most reasonable interpretation of the words themselves. it is also the most reasonable interpretation of the words, given the employe's behavior on July 25, 1995, when her supervisor attempted to give her a written disciplinary report for unprofessional behavior (refusal to work and insubordination). The employe tore up the report and threw it at the employer's nurse manager. For these reasons, the commission believes the employe's comments were a threat against her supervisor and, as such, were misconduct for unemployment compensation purposes.

The commission therefore finds that, in week 30 of 1995, the employe was discharged for misconduct connected with her employment, within the meaning of sec. 108.04(5), Stats. The commission also finds that the employe was paid benefits of $170 per week for each of weeks 31 through 38 of 1995, totaling $1,360, for which she was ineligible and to which she was not entitled, within the meaning of sec. 108.03(1), Stats. Pursuant to sec. 108.22(8)(a), Stats., she must repay such sum to the Unemployment Reserve Fund. The commission finds, finally, that waiver of benefit recovery is not required pursuant to sec. 108.22(8)(c), Stats. Although the overpayment was not due to employe fault, it also was not the result of departmental error. See secs. 108.04(13)(f) and 108.22(8)(c)2., Stats.

DECISION

The appeal tribunal decision is reversed. Accordingly, the employe is ineligible for benefits beginning in week 30 of 1995, and until seven weeks have elapsed since the end of the week of discharge and the employe has earned wages in covered employment performed after the week of discharge equaling at least 14 times the employe's weekly benefit rate which would have been paid had the discharge not occurred. The employe must repay $1,360 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 employe 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: February 16, 1996
garrewe.urr : 105 : 3 MC 640.05

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ David B. Falstad, Commissioner

 

cc: VIRGINIA HEALTH & REHABILITATION

WRAY VASSAR
CONTINENTAL INVESTIGATIONS & SECURITY LTD


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