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

DIXIE L MEZERA, Employee

3 M CO, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04006139MD


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 and eleven months as a machine operator for the employer, a manufacturer of industrial abrasive products. Her last day of work was on October 18, 2004 (week 43).

On March 24, 2004, the employer placed the employee on a performance assessment plan because of production quality control errors. On August 6, 2004, the employer placed the employee on a corrective action plan after her performance did not improve and she had eight production errors in May and June. The employee was warned that if she did not maintain a satisfactory level of performance during the next three months, she would be discharged. Safety was one of the areas in which she was expected to maintain a satisfactory level of performance.

On October 14, 2004, while performing a clean up/change over on the machine she operated along with another worker, the employee lowered the roll coat rolls. The roll coat roll was out of the lower saddle and was exposed. The cage had been removed but the safety blocks were not in place. As she continued removing the line and stepped off the machine to continue cleaning, the roll coat roll fell to the floor and struck her leg. The safety procedures require that, "safety blocks must be used whenever rolls are open and the safety cage is not in place." A roll coat roll weighs 1,000 pounds. The resulting safety rule violation was considered by the employer to be at a level that normally would result in immediate suspension.

On October 26, 2004 (week 44), the employer discharged the employee. The employee sought payment of unemployment insurance benefits.

The issue for the commission to decide is whether the employee's discharge was for misconduct connected with her employment.

The employer contended that the employee's failure to check that the safety blocks were in place constituted misconduct in light of her prior disciplinary record. The commission disagrees. In particular, while the employee had received prior discipline for production errors, this was the employee's first and only safety violation. It was an isolated incident of poor judgment not a continuing pattern of negligence so as to constitute misconduct connected with the employment.

The commission therefore finds that in week 44 of 2004, the employee was discharged but not for misconduct connected with her work for the employer within the meaning of Wis. Stat. § 108.04(5).

DECISION

The appeal tribunal decision is reversed. Accordingly, the employee is eligible for benefits beginning in week 44 of 2004, if otherwise qualified. There is no overpayment as a result of this decision.

Dated and mailed April 15, 2005
mezerdi . urr : 150 : 1 MC 664

/s/ James T. Flynn, Chairman

David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

 

NOTE: The commission did not confer with the administrative law judge prior to reversing his decision because its reversal was not based on a differing view as to the credibility of witnesses, but instead upon a differing legal conclusion as to whether the employee's failure constituted misconduct.

 

cc: 3 M Co (pr Du Chein, Wisconsin)


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