HENRY A ARVIN, Employee
C & D TECHNOLOGIES INC, Employer
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:
The employee worked for about 24 years as a tri-cast operator for the employer, a manufacturer of batteries. His last day of work was July 23, 2003 (week 30), when he was discharged.
The issue to be decided is whether the employee's actions, which led to the discharge by the employer, constitute misconduct connected with the employment.
In the week prior to the employee's discharge, the employee distributed a letter on the work floor to six second-shift workers and also approximately 40 third-shift workers who were in the locker room. The letter was a written statement the employee had attempted to read at a third step grievance hearing. The letter was highly critical of management's "rotation procedure." The employee also referred to the chief union steward, Ed Williams, as the company's "stooge." The letter concluded:
IN REFERENCE TO ED WILLIAMS;AT MY 2ND STEP GRIEVANCE HEARING ED WILLIAMS ATTEMPTED TO READ MY GRIEVANCE ALOUD ,HE STUMBLED OVER DAMN NEAR EVERY WORD, THE WORD "CAPRICIOUS" HE COULD NOT PRONOUNCE TO SAVE HIS LIFE. ED WILLIAMS CAN NOT READ, THAT MAKES HIM ILLITERATE,THAT MAKES HIM THE PERFECT STOOGE FOR MANAGEMENT ,ALSO IN REFERANCE TO ED WILLIAMS ;ED WILLIAMS ABUSES THE PRIVILEGE OF RUNNING OUT OF SPEC. MORE THAN ANY OTHER OPERATOR,ED WILLIAMS RARELY RUNS IN SPEC. IF YOU HOLD UP ED WILLIAMS AS A SHINING EXAMPLE OF WHAT A GOOD NEGRO SHOULD BE I WILL TEAR HIM APART."
On the morning of July 22, 2003, the employer's human resource manager questioned the employee about the above letter and asked him if he had any comment to make. The employee indicated that he did not trust the employer and had no comment to make about the letter. The human resource manager investigated the matter thereafter during the day on July 22. She then returned to work to meet with the employee for his third shift, which started at 11:00 p.m.
When the employee arrived at work for his work shift on July 22, 2003, the employer asked him to wait in the lobby. The human resource manager had asked the union steward to come to the meeting and the union steward had requested the union president to come to the meeting so she was delayed in starting this meeting with the employee. The employee had arrived at work 15 minutes early and was told by the guard to wait in the lobby. He paged his supervisor at 11:00 p.m. and asked the supervisor to come and get him, but his supervisor advised the employee that he couldn't come and get the employee without the human resource manager. At 11:15 p.m., the employee again called the supervisor and told the supervisor that if the company wanted to talk to him, the company should call him at home. The employee hung up the telephone without giving his supervisor an opportunity to respond and he left the building. The human resource manager went to the door from which the employee had exited the building and saw the employee; she called for him to return but he did not return because he did not hear her.
On July 23, 2003, the employer's human resource manager called the employee to a meeting at 3:00 p.m. The human resource manager asked the employee again about the letter, including a question as to what the purpose of the letter was, and the employee again stated that he would not comment on the letter. The employee was then discharged.
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 employer asserted that the employee violated a number of work rules by his actions. The employer asserted that in distributing the letter he intentionally hindered production. However, while workers may have taken a few moments to read over the letter, the evidence does not indicate either that the employee intended to hinder production, or that production was hindered. The employee distributed the letter because he needed the support of his co-workers in order to take his grievance to arbitration.
The employer asserted that the contents of the letter violated its rules against threatening/intimidating a fellow worker, using abusive language, and harassment. The letter was meant to be the employee's statement at a grievance hearing. One may expect such a statement to be critical of both management and union representatives. The employee was not "harassing" the company or any other worker/union representative. He was stating, albeit intemperately, his dissatisfaction with the company, the union and union representatives. In referring to the chief union steward as a "good Negro" the employee, a self- proclaimed "Defiant African," was admittedly using a condescending term. The employee's statement that "if" the employer considered the chief union steward to be an example of a "good Negro" he would "tear him apart," in the context of the letter, was not intended to be and cannot reasonably be interpreted as a threat of physical violence. The employee was attacking the chief union steward's competence and credibility.
Finally, the employer asserted that the employee was insubordinate when he left the work place on July 22. However, the employee had not received advance notice that a meeting would be held, that he would not be permitted to punch in, or that he would be paid for the time he waited. The employee did contact his supervisor, but was merely told that the supervisor could not allow him to work. The employee did not simply leave after waiting 30 minutes, he contacted his supervisor and informed his supervisor that he was leaving. The employee did not hear the employer calling him to return.
The commission does not determine whether the employer could or should discharge a worker. The commission's function is to determine, once a discharge has occurred, whether the employee's discharge was for misconduct connected with the employee's employment. In this case, the employer had valid reasons for discharging the employee, but after considering the record as a whole, the commission concludes that the employee's discharge was not for conduct that demonstrated a willful and intentional disregard of the employer's interests.
The commission therefore finds that in week 30 of 2003, the employee was discharged but not for misconduct connected with his work for the employer within the meaning of Wis. Stat. § 108.04(5).
The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 30 of 2003, if he is otherwise qualified.
Dated and mailed June 17, 2004
arvinhe . urr : 132 : 1 : MC 640.03 MC 640.06 MC 668
/s/ James T. Flynn, Chairman
/s/ Robert Glaser, Commissioner
The commission did consult with the ALJ who presided at the hearing regarding his impressions of witness credibility and demeanor. The ALJ indicated that the employee did not have any credibility. The ALJ did not relay any observations regarding the demeanor of the employee that led to his credibility assessment. After reviewing the record the commission has arrived at a different assessment of the employee's credibility.
DAVID B. FALSTAD, Commissioner, (dissenting):
I respectfully dissent from the majority opinion in this case. I believe the employer reasonably considered the employee's statement to constitute a threat against another worker. The employer gave the employee two opportunities to explain the letter. The employee did not clarify his words when given the opportunity to do so.
The employee was scheduled to work on July 22, and had only waited 15 minutes after his scheduled starting time. Given the circumstances, it should have been evident to the employee that he was being asked to wait because the employer wanted to discuss the matter with him. While the employee announced to his supervisor that he was leaving, he did not give the supervisor a chance to respond to the fact that he had not been allowed to punch in. Indeed, the delay was not caused by the employer but by the union. It was the employee's conduct in distributing a letter in which he accused management of being, among other things, lying, incompetent, racists, hypocrites, that led to the need to meet with the employee and his union. As such, it was hypocritical of the employee to take such alleged umbrage at waiting 15 minutes after his scheduled starting time.
I agree with the ALJ that the totality of the employee's actions evinced a wilful and substantial disregard for the employer's interests such as to be deemed misconduct connected with his work.
/s/ David B. Falstad, Commissioner
Attorney Arthur Heitzer
Attorney Joy M. Burkholder
Appealed to Circuit Court. Affirmed January 25, 2005. [Summary of circuit court decision]
[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]