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


DAVID L FURLONG, Employe

QUAD/GRAPHICS INC, Employer

UNEMPLOYMENT COMPENSATION DECISION
Hearing No. 97600937WK


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 the applicable law, records and evidence in this case, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked just over one year as a material handler for the employer, a printing company. His last day of work was December 21, 1996 (week 51), when his employment was suspended. The employe was discharged on January 2, 1997 (week 1).

As part of his duties, the employe works with paper core rolls which are approximately 33 inches long, 4 and a 1/2 inches wide, and weigh 7 pounds. When a paper core roll comes out of the press, a material handler is responsible for taking the core out, stripping the remaining paper off the core, removing the metal end, and placing the core in a cradle. The employe works in a area that is approximately 40 feet wide and 200 feet long. There are six individuals working in the area on six presses. During the employe's December 20 - 21 work shift, the employe became frustrated because the press kept going down. When it went down the last time, the employe took a core and threw it hard, approximately 60 feet, into a corner. The area in which the employe threw the core was where a co-worker stored a steel topped tool box. The core caused a 1 and 1/2 inch dent in the top of the tool box.

Later in the employe's shift he was asked by his supervisor if he had dented the tool box. At first the employe denied doing so. The employe denied doing so because he did not think he had done it. Later, the employe called his supervisor and told his supervisor that he had accidentally hit the tool box. The immediate supervisor contacted the press room department manager about the situation. The immediate supervisor was instructed to suspend the employe's employment until January 2, at which time the situation would be discussed with the press room manager.

The employe did not realize there was a tool box in the area that he threw the core. He was having a bad day because the press kept going down. The employe was mad when he threw the core and did not think about hitting someone or a press. The employe had received prior reviews which indicated that he did not handle pressure well and got frustrated.

The employer's rules and regulations list violations that can result in discipline, up to and including discharge, and include "disobeying general conduct and safety rules."

The issue to be decided is whether the employe's actions which led to his discharge constitute misconduct connected with his employment.

The appeal tribunal found that the employe's actions constituted a single, isolated instance of poor judgment. The commission finds that the employe's actions constituted an intentional and substantial disregard of the employer's interests and therefore reverses the appeal tribunal decision.

In Randall L. Zoromski v. The Copps Corporation, UC Hearing No. 95005392WR (LIRC Feb. 29, 1996), an employe and a co-worker were steam cleaning bakery and grocery carts and fryer filters behind one of the employer's retail stores. The employe was resting the filters on plastic milk crates while hosing down the filters. The crates weighed about two pounds. The employe became angry because the hose was becoming entangled in the milk crates. The employe had last seen the co-worker going up a ramp into the employer's facility. The employe picked up a crate and threw it approximately 15 yards into the area in which the co- worker had been working. The crate landed among bakery carts being cleaned by the co-worker, striking the co-worker on the knee and wrist. The co-worker missed the following two days of work because of swelling and bruising. The commission found that the employe's actions constituted misconduct. In doing so, the commission relied on the Supreme Court's decision in McGraw- Edison Co. v. ILHR Dept., 65 Wis. 2d 703 (1974).

In McGraw-Edison, an employe and a co-worker were working on a press. The co-worker was sending dryer tops down a slide to the employe's station. The employe became upset when his finger was pinched between two dryer tops. The employe 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 employe 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 employe'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 employe] 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 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 employe's] conduct was not due to inefficiency or incompetence 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 employe'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.

As in McGraw-Edison Co., the employe here did not have to have the intent to actually strike a co-worker or damage the co-worker's property or the employer's property. The employe's actions in hurling an object through the air, whether or not with the intent to cause injury or damage still put a dangerous object in the air and thereby endangered the safety of anyone in its path and presented a risk of damage to property in its path.

The employe admitted that his actions in throwing the core were done out of anger. The employe did not simply toss the core to the side but threw it, by his own admission, "pretty hard" sixty feet across the employer's press room. Further, the employe's actions in fact caused damage to property. As noted by the court in McGraw-Edison Co., the employe's actions were not due to inefficiency or incompetence.

The commission therefore finds that in week 1 of 1997, the employe 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 employe was paid benefits in the amount of $5408.00 for weeks 1 through 26 of 1997, for which he was not eligible and to which he 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.

Wis. Stat. § 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 employe. 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). Rather, the commission has reached a different legal conclusion when applying the law to the facts.

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 employe 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 employe is ineligible for benefits beginning in week 1 of 1997, and until seven weeks elapse since the end of the week of discharge and the employe 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. He is required to repay the sum of $5408.00 to the Unemployment Reserve Fund. The initial benefit computation (UCB-700) issued on January 5, 1997, is set aside. If benefits 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 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 August 15, 1997
furloda.urr : 132 : 1 MC 663

/s/ Pamela I. Anderson, Chairman

/s/ David B. Falstad, Commissioner

MEMORANDUM OPINION

The commission did not consult with the administrative law judge regarding witness credibility and demeanor. The commission has not reversed the appeal tribunal decision based on a differing impression of witness credibility or demeanor but upon reaching a different legal conclusion when applying the law to the facts.

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


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