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

ALLAN D WOEPSE, Employee

US POSTAL SERVICE, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 96403057SH


An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development (Department of Industry, Labor and Human Relations prior to July 1, 1996) 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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employe is ineligible for benefits for weeks 42 and 43 of 1996. Thereafter, the employe is eligible for benefits, if he is otherwise qualified.

Dated and mailed May 8, 1997
woepsal . usd : 135 : 3    MC 676

/s/ Pamela I. Anderson, Chairman

/s/ David B. Falstad, Commissioner

MEMORANDUM OPINION

In his petition for commission review the employe admits making the comment ". . . she'll be right up your ass." The employe however disputes the employer's testimony as to what occurred next. Although the commission is satisfied that the employe's comment alone is sufficient to support a finding of good cause within the meaning of sec. 108.04 (6), the commission notes that it, as did the administrative law judge, found the supervisor's testimony regarding the baseball cap credible. Notwithstanding this, the commission is satisfied that the employe's admission regarding the statement is sufficient to support good cause within the meaning of the statute.

The employe contends that the comment did not violate the employer's zero tolerance policy but rather constituted a lapse of judgment. The commission agrees the employe's statement reflected a lapse of judgment. However, the commission also concludes that this lapse of judgment is sufficient to support a finding of good cause within the meaning of sec. 108.04 (6), Stats. While the employe notes that his legal research failed to identify any published Wisconsin Court of Appeals decision defining "good cause" within the meaning of sec. 108.04 (6), Stats., and the statute fails to define "good cause," the commission has consistently held that good cause in a disciplinary suspension includes single, isolated acts of negligence or poor judgment of a type that the misconduct standard would not necessarily include. This standard is considered to be a less stringent standard than the misconduct standard. Cindy E. (Pozega) Masanz v. Eagleeye Beverage, Inc., (LIRC 2/19/93) ; Gabriel B. Lepak v. County of Shawano, (LIRC 1/18/95).

Therefore, applying the law to the facts at hand, the commission concludes that the employe's use of vulgar language to a co-worker and in the presence of a supervisor was in violation of the above-referenced employer policy and that under the circumstances the employe's conduct amounts to good cause for imposing the disciplinary suspension within the meaning of section 108.04 (6), Stats.

cc: 
US Postal Service FIC No 732
Attorney Israel Ramon


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