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

JAMES E PITTS, Employee

MILLER BREWERIES EAST INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05600318MW


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, and after consultation with the ALJ, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked 28 years as a brewery worker for the employer, a brewery business. His last day of work was December 4, 2004 (week 49).

In the fall of 2004, the employee signed a last chance agreement with the employer arising out of his admitted alcoholism and attempt to drink beer while working. Under the terms of the last chance agreement, it was agreed that any future violation of the employer's rules could result in termination. The employee also agreed to participate in an intensive alcohol treatment program which he recently completed.

On the evening of December 4, 2004, the employee was working as depalletizing machine operator. The machine removes the bottles from pallets and processes them toward the filler machine, where the bottles are filled with beer. The final incident occurred near the end of the shift when the employer had extended production. As the employee was completing "end of shift paperwork" in a separate area from where the machines were operating, the employee's machine stopped as a result of a blockage and the filler machine was without bottles. Neither the employee nor the filler machine operator noticed the error. After approximately 30 minutes, the supervisor contacted the filler operator to determine what was wrong. The filler operator contacted the employee. Typically, a warning light would have notified the employee in the paperwork area of the problem but the light was not operating that evening. When told of the stoppage, the employee immediately went to the production floor. He inadvertently left his safety hat and safety glasses in the paperwork area where they were not required. The employee unblocked the line and, on his way back to the paperwork area, he briefly stopped to cut up bands at the band chopper in order to prepare the area for the next shift. His supervisor observed him without his safety hat and glasses as required on the production floor. An investigation was initiated and the employee was discharged on December 7, 2004 (week 50). Following the discharge, the employee initiated a claim for unemployment insurance benefits.

Wis. Stat. § 108.04(5) provides that a worker who is discharged for misconduct connected with the employment is ineligible for unemployment insurance benefits. As such, the issue before the commission is whether the employee's discharge was for misconduct.

The employer contended that the employee's discharge was for misconduct connected with his employment. Specifically, the employer argued that the employee's inattentiveness to the production situation and failure to wear the proper safety equipment violated the last chance agreement and amounted to misconduct. The commission disagrees. While the employee may have violated the last chance agreement with the safety violation, the agreement and its violation is not dispositive; the agreement is a private contract and cannot supersede the unemployment insurance law. Jorgensen v. General Motors Corp., UI Dec. Hearing No. 00003662JV (LIRC January 5, 2001). 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' with in the meaning of the statute."

The commission finds that the employee's behavior in the last incident was substantially less culpable than the earlier incident for which he signed a last chance agreement, even though that earlier behavior was mitigated by his alcoholism. The commission credited the employee's testimony that he was not careless or negligent in failing to notice that the line had stopped. While the typical noise of the bottles may have been absent given the blockage, the employee was attempting to complete paperwork on an evening where production was extended. The employee was busy with work duties; the warning light did not operate and the filler operator also did not notice the stoppage. His failure was not negligence or carelessness. Similarly, the commission finds the employee credible that he did not think about the safety equipment but instead tried to quickly remedy the stoppage. Finally, while the employee was, in fact, careless in not retrieving his safety equipment before cutting the bands, the commission treats this failure as an isolated incident of poor judgment. His behavior did not constitute misconduct even in light of the last chance agreement.

The commission therefore finds that in week 50 of 2004, the employee was discharged but not for misconduct connected with his 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 50 of 2004, if otherwise qualified.

Dated and mailed May 24, 2005
pittsja . urr : 150 : 1  MC 688.1  MC 695

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

 

NOTE: The commission conferred with the administrative law judge prior to reversing the decision. The administrative law judge did not cite any specific demeanor evidence that led to credibility determinations. He concluded that the employee should have been able to hear the bottles clinking unless distracted. The commission does not disagree with this analysis but instead finds that the employee was distracted by the paperwork duties and did not realize the error. The commission reaches a different conclusion based on its review of the evidence of record, as detailed above.

 


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