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

JOSEPH A KAISER, Employee

WAUSAU STEEL CORP, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04200083WU


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 six years as a burning table and crane operator for the employer, a manufacturer of steel products. He was discharged on or around December 13, 2003 (week 50).

The issue is whether the actions for which the employee was discharged constitute misconduct connected with his employment.

There are only three incidents arguably close enough in time to the date of the discharge to be relevant here.

In December of 2002, the employer received a complaint from a customer to the effect that parts the employee had inspected, which had been produced by an employee on a previous shift, had unacceptable amounts of slag attached to them. The employee had inspected each of the 250 parts and removed excess slag from those that needed it; the parts did not need to be hand scraped since the slag had come off relatively easily by rubbing the parts together; and the amount of slag remaining on the parts was within acceptable limits. The employee was issued a warning regarding this incident, and this warning stated that, should this incident occur again, the consequence would be "possible probation or suspension." In response, the employee wrote on the warning notice that, "the parts I put in the barrels didn't have that much slag on them."

On October 3, 2003, the employee was issued a 3-day disciplinary suspension for moving a crane into place above the head of a co-worker. This was a significant safety violation. The disciplinary document stated that, "Any future incidents of this type will result in immediate dismissal."

On December 12, 2003, the employee's supervisor relayed a directive to the employee to clean certain parts which the supervisor believed contained an amount of residual slag which would not be acceptable to the customer for which the parts had been produced. The supervisor issued this directive to avoid jeopardizing the employer's relationship with this customer and to avoid incurring additional shipping costs if the parts were rejected. The employee was not aware that the directive came from his supervisor. In reaction to the directive, on a weekly production report sheet, the employee wrote, "Whomever is bitching about my C&S pieces can kiss my ass. I've seen worse shit go out than mine. So fuck off. Both table's full of parts. Had to clean parts for C&S that people are so kindly bitching about." The employee was discharged as a result. In reaching this discharge decision, the employer was concerned about the quality of the parts and the employee's continuing failure to clean them to this customer's standards, not the employee's use of profanity.

The commission has been consistent in holding, except in those cases in which the alleged conduct is sufficiently egregious, which is not the situation here in regard to the final incident, that, before there can be a finding of misconduct, the employee has to be aware or have reason to be aware that his job is in jeopardy or will be if he engages in the subject conduct. See, e.g., Hainz v. Nelson Industries, Inc., UI Hearing No. 00003095MD (LIRC Oct. 3, 2000); Marcolini v. Alma Public Schools, UI Hearing No. 78-20774EX (LIRC May 29, 1979); Munoz v. LaCosta, Inc., UI Hearing No. 02607640MW (LIRC April 4, 2003).

The employee had two work quality deficiencies a year apart, and a safety violation. The employee's December 2002 warning put him on notice that another work quality deficiency would result in possible probation or suspension. The employee's October 2003 warning put him on notice that another safety violation would result in immediate dismissal. As a result, in December of 2003, the employee was not on notice that a work quality deficiency, such as that embodied in the final incident, would place his job in jeopardy.

The commission concludes as a result that the employer failed to sustain its burden to prove misconduct.

The commission concludes that, in week 50 of 2003, the employee did not voluntarily terminate work with the employer within the meaning of Wis. Stat. § 108.04(7)(a); but was discharged, within the meaning of Wis. Stat. § 108.04(5), and this discharge was not for misconduct connected with the employee's work.


DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 50 of 2003, if otherwise qualified.

Dated and mailed July 8, 2004
kaisejo . urr : 115 : 1     MC 664

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


NOTE: The commission did not confer with the administrative law judge before reversing her decision, because its reversal was not based upon a differing view as to the credibility of witnesses, but instead upon a differing conclusion as to what the hearing record in fact established and upon a differing interpretation of the relevant law.

cc: Kathy McKenzie


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