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

CHRISTOPHER J BROWN, Employee

CARGILL INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05000164JV


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 the employer, a manufacturer of animal feed, for six years as a panel technician, most recently on third shift. His last day of work was December 5, 2004 (week 50).

In March of 2004 the employee left a note on a pallet of feed in which he described the first shift as "very unmotivated and slothlike." The employee was warned that the employer considered this to be harassment and that further such incidents would result in discipline up to and including discharge.

On November 23, 2004, the employee brought a potato gun to work and shot it at various co-workers. One of the co-workers was hit in the face with a piece of potato, and some potato juice got in his eye. The co-worker told the employee to knock it off, and the employee did so. However, he did continue to shoot the potato gun at other workers thereafter.

When the production operations manager learned of the incident he asked the employee whether he had brought a potato gun to work. The employee readily employee admitted to doing so. He explained that he was trying to improve morale.

The employee was discharged on the spot for horseplay and harassment. The employer contended that this was the employee's second incident of harassment. It explained that, had there not been a prior incident, the employee would have been subject to lesser discipline.

The issue to be decided is whether the employee's discharge was due to misconduct connected with his employment.

In Boynton Cab v. Neubeck, 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 employe, 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 employe'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 employer contended that the employee engaged in horseplay and harassment after receiving a warning for similar conduct, and that his actions amounted to misconduct. The commission disagrees. The employee's prior warning was for leaving a disrespectful note about co-workers, a matter which was not comparable to the incident for which he was discharged, nor did the warning put the employee on notice that horseplay would not be tolerated. The employee indicated that he would not have brought the potato gun to work if he had known it would cost him his job, and the commission sees no reason to believe otherwise. The employee testified without rebuttal that horseplay was common in the work environment and, indeed, the same co-worker who was hit in the face with a piece of potato acknowledged that on a previous occasion he had punched the employee in the face "in fun." The employee further testified, also without rebuttal, that he showed the potato gun to his supervisor, who laughed about it and did not ask him to put it away. Finally, while there is no question but that the employee's conduct was childish and disruptive, it should be noted that his intent in bringing the potato gun into the workplace was to relieve stress and boost morale. Given all the facts and circumstances, the commission does not believe that the actions for which the employee was discharged were undertaken in wilful and substantial disregard for the employer's interests or the standards of conduct the employer had a right to expect of him.

The commission, therefore, finds that in week 50 of 2004, the employee was discharged and not for misconduct connected with his employment, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 50 of 2004, provided he is otherwise qualified. He is not required to repay the sum of $2632 to the Unemployment Reserve Fund.

Dated and mailed May 11, 2005
brownch . urr : 164 : 1 MC 656  MC 673

/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 about witness credibility and demeanor. The commission's reversal is not based upon a differing assessment of credibility. Rather, the commission has reached a different conclusion when applying the law to the facts in this case.

 

cc:
Cargill, Inc. (Janesville, Wisconsin)
Cargill, Inc. (Milton, Wisconsin)


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