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

DANIEL J PELTIER, Employee

OCEAN SPRAY CRANBERRIES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03007243MD


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 for approximately eight years, most recently in maintenance, for the employer, a cranberry processor. His last day of work was September 12, 2003. He was discharged on September 16, 2003 (week 38).

On May 11, 2003, the employee sent a sarcastic e-mail concerning a supervisor to co-workers. This e-mail was rigged to look like it was also sent to the supervisor in question. The e-mail profusely thanked the supervisor for helping out with a project even though the employee believed that the supervisor had done nothing worthwhile. On May 22, 2003, the employee e-mailed his supervisor and advised that he would not be into work the next day. The employee was taking a vacation day. The supervisor immediately tried to contact the employee, but the employee had left work already, two hours early. The supervisor was upset because the employee had earlier agreed to work the next day and the employer had hired a contractor for the next day in anticipation of the employee working. On May 25, 2003, the employee failed to repair a machine that was necessary to the employer's daily operation.

The employee received a verbal warning and a suspension on June 5, 2003, for the above occurrences. He knew that his job was in jeopardy. On June 20, 2003, the employee was 23 minutes late for work. He received another warning.

The final incident occurred on September 8, 2003. The employee was in the breakroom. The employee is white. An African-American co-worker walked into the breakroom. The employee said to the African-American co-worker, "Is it your break time already boy?" The co-worker asked the employee what he said. The employee repeated his comments, but omitted the word "boy." The employee was in the habit of referring to male co-workers as "boys" and to female co-workers as "girls."

The issue is whether the employee was discharged for misconduct connected with the 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 employee had exhibited a poor attitude, poor judgment and poor performance in May of 2003, and had been disciplined for that conduct in June of 2003. The employer did not demonstrate ongoing problems of a similar nature in July and August of 2003. The employee and his witnesses credibly testified that he called co-workers "boys" or "girls" in general. The employee did not intend any offense when he referred to the African-American co-worker as a "boy." The employee again exercised poor judgment, but did not engage in conduct that rose to the level of an intentional and substantial disregard of the employer's interests.

The commission therefore finds that in week 38 of 2003, the employee was discharged but not for misconduct connected with his work within the meaning of Wis. Stat. § 108.04(5).


DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 38 of 2003, if he is otherwise qualified.

Dated and mailed June 9, 2004
peltida . urr : 132 : 1 : MC 668

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


MEMORANDUM OPINION

The commission did consult with the ALJ who presided at the hearing regarding her impressions of witness credibility and demeanor. The ALJ found the employee's claim, that he did not know his use of the word "boy" would be offensive to an African-American, to be incredible in this day and age. The ALJ further noted, as she did in her decision, that in his initial interview with the department's adjudicator the employee referred to the African-American co-worker as a "colored man." However, the ALJ further indicated that the employee was very sincere at the hearing that he did not want to be considered a racist. The commission concludes that while the employee for some reason used culturally insensitive terms such as "boy," "girl" and "colored man," he did not do so with the intent to offend his co-workers.

cc: Ocean Spray Cranberries, Inc. (Tomah, Wisconsin)


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