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

JOSEPH B PONTON, Employee

SOUTHWEST METAL FINISHING INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04602511MW


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 for about two years as a plater for the employer, an operator of a metal polishing and chrome plating business. His last day of work was February 5, 2004 (week 6).

The employee's job required him to put a variety of metal products through plating processes that included moving parts through a number of plating solutions and rinses in strict compliance with written procedures. On Monday, February 2, 2004 (week 6), the processing engineer attended a meeting at which the topic of large amounts of scrap was discussed. The process engineer was ordered to investigate the matter and find the cause. On Wednesday, February 4, 2004 (week 6), he watched the employee from a concealed position as the employee performed his tasks. The process engineer observed the employee repeatedly skip, alter or shorten steps in the process. He was discharged because the employer believed that his actions led to scrap and contaminated materials.

The issue in this case is whether the employee was discharged for misconduct connected with his work pursuant to Wis. Stat. § 108.04(5).

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 compensation 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."

Clearly the employer considered the employee's failure to follow its policies to be a very serious matter. The policies were designed to ensure that the employer produced a high quality product. However, the employer did not demonstrate that it was the employee's failure to follow its policies that resulted in excessive scrap. In addition, the employer did not establish that the employee had been performing the job correctly in the past. The process engineer testified that he the employee gave the parts three rinses in acid copper when the parts were only to be rinsed twice. The fact that the employee performed an additional step suggests that the employee did not have a clear understanding of the steps. In addition, the employer could not suggest a motive for the employee's actions, as the production of more product did not result in any direct financial benefit to the employee. The only motive the employer could ascribe to the employee's actions was that he wanted to produce the most product. This was an isolated incident and while the employer was reasonable in taking this matter seriously, the employee had never been warned with respect to failing to follow the procedures more closely in the past. Under the circumstances, the commission concludes that the employee's actions demonstrated poor judgement on his part, but did not evince such a wilful and substantial disregard of the employer's interests as to amount to misconduct connected with his work.

The commission therefore finds that the employee was discharged, in week 6 of 2004, but that his discharge was not for misconduct connected with his work within the meaning of Wis. Stat. § 108.04(5).

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 6 of 2004, if otherwise qualified.

Dated and mailed November 10, 2004
pontojo . urr : 145 : 1 MC 657

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The commission did not discuss witness credibility and demeanor with the ALJ. The commission reversed the ALJ because it reached a different legal conclusion when it applied the law to the facts found by the ALJ.



[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]


uploaded 2004/11/16