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

TINA M GRILL, Employee

CARDINAL GLASS INDUSTRIES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03202572EC


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 employee is eligible for benefits as of week 49 of 2003 and thereafter, if she is otherwise qualified.

Dated and mailed June 30, 2004
grillti . usd : 135 : 3    MC 696

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION


The employer cites John P. Keena v. Trek Bicycle Corporation, UI Hearing No. 99002806JV, (LIRC November 12, 1999), in support of its argument that the appeal tribunal decision should be reversed. In Keena v. Trek Bicycle, the employer had in place a similar work rule prohibiting the use of tobacco products on company property. However in that case, the employer's work rules specifically warned its employees that the use of tobacco products on company property would result in immediate dismissal. Here, the employer admits that its work rule does not warn its employees what discipline will occur as a result of violating its no smoke policy. However, the employer argues that it is its practice to immediately discharge an employee for violating its no smoke policy and work rule. However, the record supports the ALJ's finding that no precedent existed which would have put the employee on notice as to the consequences of smoking on the employer's premises in violation of the employer's work rule. While it was clearly improper for the employee to have violated the employer's work rule, especially a rule she was put on clear notice of, in this instance the employee's violation of the rule was more a matter of unsatisfactory conduct rather than a wilful, intentional and substantial disregard of the employer's interests or of the standards of conduct which the employer had a right to expect of the employee. Because this case is distinguishable from John P. Keena v. Trek Bicycle Corporation, for the reasons discussed above, the commission reaches a different legal conclusion finding that the employee's discharge was not for misconduct within the meaning of the law.


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