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


HELEN R LEVY, Employe

ASTOR HOTEL SHORELINE REAL ESTATE, Employer

UNEMPLOYMENT COMPENSATION DECISION
Hearing No. 97603342MW


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 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 eligible for benefits as of week 14 of 1997, if otherwise qualified.

Dated and mailed: January 16, 1998
ellioru2.usd : 132 : 1 MC 610 MC 670

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission declines the employer's request that the hearing tapes be considered. The commission is satisfied that the synopsis is sufficiently complete and accurate to reflect the relevant and material testimony taken at the hearing. In fact, the commission believes this case's issue is rather straight forward. The issue is whether the employe's conduct (1) of grabbing her manager's finger and causing her pain, is better characterized as an isolated instance of poor judgment or as an intentional and wanton disregard of the employer's interests and standard of conduct the employer had a right to expect of the employe.

The commission agrees with the employer's statement of the law that a single isolated instance of unsatisfactory conduct may constitute misconduct within the meaning of Wis. Stat. § 108.04 (5). See McGraw-Edison Co. v. ILHR, 64 Wis. 2d 703 (1974). However, the commission believes that the employe's conduct in this case is better characterized as an isolated instance of poor judgment rather than unsatisfactory conduct rising to the level of misconduct. Although the commission does not condone physical assaults, violence or threats committed by employes at the workplace, the commission does not believe the facts of this case establish misconduct.

The employe was an exemplary employe and presented an unblemished work history of 36 years with the employer (the last six years for the current ownership). The employe had no history of belligerent or disruptive behavior and both the employe and the manager were upset leading to the incident in which the employe grabbed the manager's finger. Although the employe responded inappropriately by grabbing the manager's finger, the manager also acted inappropriately when she pointed her finger in the employe's face. Based on the employe's length of service, her exemplary work history, and the isolated nature of her poor judgment, the commission is unwilling to characterize the employe's actions as misconduct within the meaning of Wis. Stat. § 108.04 (5). Accordingly, the appeal tribunal decision is affirmed.

cc:
ATTORNEY BARRY L CHAET
BECK CHAET LOOMIS MOLONY & BAMBERGER

ATTORNEY MICHAEL HANRAHAN
FOX CARPENTER ONEILL & SHANNON

 

PAMELA I. ANDERSON, COMMISSIONER (dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. I believe that a physical assault is misconduct. This is a very unfortunate case where an employe of 36 years is discharged.

There is no testimony from the employe's daughter to refute the employer's version of what happened in the hallway between the general manager and the employe's daughter. The general manager said that the daughter was screaming "racial discrimination" two or three times as she left the building. Asking the daughter to leave the hallway without more facts would not be racial discrimination where the employer has a rule against family members being in the work area. I am certain that the employe would be upset if her daughter told her that the general manager treated badly or discriminated against her because of race.

There is nothing in the record to indicate that the employe had ever had problems in the past or that she believed that the employer had treated her in a discriminatory manner. When the general manager asked, is everything ok or all right, the general manager seemed to be showing concern for the employe. The fact that the general manager told her that her daughter should not be in the hallways is not enough to provoke the employe. The employe and employer give different versions of what happened next. I believe that the employe grabbed the general manager's finger and did not push it away. I based this on two things, one the employe seems to have been the most upset about the situation and I do not believe that the employer was yelling at her. Second, I believe that the discrimination complaint filed by the employe supports that the employe "caught her finger and held her hand." I do believe that the employe physically assaulted the general manager. The fact that the general manager called a doctor friend about what to do with her finger makes me believe it was a serious assault.

For these reasons, I would reverse the appeal tribunal decision and find misconduct connected with her work and deny benefits.

Pamela I. Anderson, Commissioner


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Footnotes:

(1)( Back ) The employer did not discharge the employe for having family members on the hotel's floor, but rather for her physical conduct.