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


PAUL A BENITES, Employe

AMCAST AUTOMOTIVE CEDARBURG PLANT, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 97606983WB


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 the applicable law, records and evidence in this case, and after consultation with the administrative law judge, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked for the employer, an aluminum mold die casting company, for approximately nine years as a quality control technician. His last day of work was September 30, 1997 (week 40); he was discharged on October 1, 1997 (week 40).

On September 25, 1997, a supervisor was looking for one of the employe's co-workers. She found the worker in the locker room. She suspected he had been drinking. He was lying on one of the benches and she thought he smelled of alcohol. The supervisor returned to the quality control lab and called the plant manager. He advised her to inform the worker that she was going to take him to the hospital for an alcohol test and that if he failed to submit to the test, he would be discharged. At the same time, someone called the employe because he was the worker's union representative. The employe spoke to the worker who told the employe he was ill and wanted to go home. The employe went to the quality control lab and talked with the supervisors. He explained that the employe told him that he was ill and wanted to go home. The supervisor told the employe that she was taking the worker to the hospital for an alcohol screen and that should he refuse, he would be suspended pending further investigation. The employe said that if the employe was sick, he should go home. Voices were raised and the employe told the supervisors to "shut up." A secretary who was also present started to say something and the employe said "fuck you" to her. The employe left the office and saw the worker standing near the time clock waiting for someone to bring his keys. The employe walked the worker to the front door and the worker left the premises. The employe was subsequently discharged for insubordination and interfering with management's efforts to give the worker an alcohol screen.

The issue to be decided is whether the employe's actions, which led to the discharge by the employer, constitute misconduct connected with the employment.

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 insurance 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' within the meaning of the statute."

The employe argued that his actions during this incident were consistent with his role as a shift union steward and his conduct and his use of vulgarities were consistent with common practice in the employer's workplace. The commission disagrees.

The employe exceeded the standards the employer had a right to expect when he was disrepectful to his supervisors and then swore at the secretary who was casually present at the meeting with the supervisors. The vulgarity occurred without provocation and was directed at the woman personally rather than used in general conversation.

The commission has found instances of vulgarity less severe than this one to constitute misconduct for unemployment insurance purposes. (1) Recently, the commission also found misconduct in Kneubuhler II v. LIRC, No. 96001045MD (LIRC, 7-12-96), in which the employe told his supervisor that the supervisor did not know "what the fuck" he was talking about.

In the present case, the commission finds the employe's personally direct vulgar remark and otherwise belligerent attitude constituted misconduct for unemployment insurance purposes.

The commission also finds that the employe exceeded his role as shift union steward when he went beyond advocating for the worker and interfered with management prerogatives by escorting the worker to the doors of the plant. While the employe maintains that he merely walked with the worker when the worker decided to leave, the facts as determined by the ALJ lead to a different inference. The employe assisted the worker in leaving even though he knew the employer wanted him to be tested for alcohol. While the employe was not required to restrain the worker or inform the worker of the test, he went too far and actively interfered with the employer's efforts to test the worker when he took him to the doors. The commission does not credit that that the employe acted without intent to shield the worker from the employer's demand that he be tested for alcohol.

The commission therefore finds that in week 40 of 1997, the employe was discharged for misconduct connected with the employe's work for the employer, within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employe was paid benefits in the amount of $151 for week 40 of 1997, and $282 per week for each of weeks 41 through 47 of 1997, amounting to a total of $ 2125; for which he was not eligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03 (1), and pursuant to Wis. Stat. § 108.22 (8)(a), he is required to repay such sum to the Unemployment Reserve Fund.

The commission further finds that waiver of benefit recovery is not required under Wis. Stat. § 108.22 (8)(c), because although the overpayment did not result from the fault of the employe as provided in Wis. Stat. § 108.04 (13)(f), the overpayment was not the result of a department error. See Wis. Stat. § 108.22 (8)(c)2.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employe is ineligible for benefits beginning in week 40 of 1997, and until seven weeks have elapsed since the end of the week of discharge and he has earned wages in covered employment performed after the week of discharge equaling at least 14 times his weekly benefit rate which would have been paid had the discharge not occurred. He is required to repay the sum of $2125 to the Unemployment Reserve fund. The initial Benefit Computation (Form-700), issued October 3, 1997 is set aside. If benefits payments become payable based on other employment, a new computation will be issued as to those benefit rights.

For purposes of computing benefit entitlement: Base period wages from work for the employer prior to the discharge shall be excluded from any computation of maximum benefit amount for this or any later claim. If the employe was also paid base period wages from work by other covered employers, the excluded wages shall be used to determine benefit eligibility. However, any benefits otherwise chargeable to a contribution employer's account shall be charged to the fund's balancing account.

Dated and mailed: March 27, 1998
benitpa.urr : 178 : 8    MC 668

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

MEMORANDUM OPINION

The commission spoke to the ALJ to get her credibility impressions prior to its decision to reverse. The ALJ believed that the employe did not interfere with the employer's efforts to take the other worker for an alcohol test. The commission disagrees. While the commission accepts the factual basis of the confrontation as set out in her decision, the commission finds that the employe acted to prevent the employer from completing the alcohol test when he escorted the worker out of the plant. While the employe had a duty to advocate for the worker to management, after the supervisors made clear their intention to test the worker, the employe exceeded his authority in escorting the worker to the door before the supervisors had an opportunity to approach the worker about the test.


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Footnotes:

(1)( Back ) Reilly v. Aluminum Goods Mfg. Co., (Wis. Cir. Ct. Dane County Feb. 8, 1954), 11 Wisconsin Unempl. Ins. Repts. (CCH) 8221 (APP-5)(court affirmed commission conclusion that employe's single outburst to supervisor in which she called him "god-damn bastard," was misconduct); Luse v. Mid-City Foundry Company & Ind. Comm., (Wis. Cir. Ct. Dane County Dec. 18, 1963), 11 Wisconsin Unempl. Ins. Repts. (CCH) 8388 (APP-8, 9)(court affirmed commission's decision that employe's single outburst to supervisor described in the court's decision as having been "Oh, fuck you" was misconduct); Lathrop v. DILHR & Presto Products, (Wis. Cir. Ct. Dane County Mar. 12, 1979), 11 Wisconsin Unempl. Ins. Repts. (CCH) 8943 (APP-12)(court affirmed commission's decision of misconduct where employe told supervisor "stick it in your ass"); Stribling v. LIRC and Reinhart Foods, Inc., No. 95-CV-006424 (Wis. Cir. Ct. Milwaukee County Mar. 22, 1996), (APP-16)(court affirmed commission's conclusion that employe's outburst, repeatedly and loudly calling his supervisor a "fucking liar," was misconduct).