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

ASHLEY M BUCKHOLT, Employee

PRENTICE IGA, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05401759AP


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 two years as a bakery clerk for the employer, a grocery business. She was discharged on Thursday, May 26, 2005 (week 22).

The facts of the case are undisputed. The employee arrived at work at approximately 3:00 a.m. on Wednesday, May 25. The bakery manager told the employee that she was upset about some information that she had received from one of the employee's co-workers, "Jodi." Jodi apparently repeated some comments that the employee made about the bakery manager when both Jodi and the employee were off duty.

When Jodi arrived at 9:00 a.m., the employee asked her to step outside the building so that they could talk. The employee asked Jodi why she repeated the content of a private conversation. Jodi responded, "I thought I was helping and that it would stop the bickering." The employee told Jodi, "It made matters worse. That was personal information, told to a friend. I thought I could trust you." Jodi continued arguing with the employee, and then stepped inside the bakery. The employee followed her. The employee alleges that she heard Jodi (who was at that point standing in front of the bakery counter, in a customer area) say, "She's a fucking bitch. I am not going to make her wedding cake anymore." The employee (who was standing behind the counter in the same customer area) told Jodi, "You are a whore."

The former store director testified as the employer's representative at the hearing in this matter. He indicated that if the incident proceeded no further than described above, he would have elected to give the employee a disciplinary suspension for three to five days. He would not have discharged her for her behavior up to this point.

The employee arrived at work at 3:00 a.m. on Thursday, May 26. Neither the bakery manager nor Jodi were scheduled to work that day. The employee told another co-worker, "Helen," about the confrontation on the previous day. She explained to Helen that she had gone to Jodi's house with a letter of apology. The employee then described a conversation she had with her fiancé‚ on the previous evening, during which she reported these same events. The employee told Helen that her fiancé‚ said, "That dumb bitch. Someone should break her back and egg her house. She doesn't deserve to live in this town."

The store director learned about the employee's conversation with Helen. He met with the employee at approximately 8:00 a.m. that same day, and told her that she was being discharged for "threats or intimidation on company property." The employee never again performed work for this employer.

Wis. Stat. § 108.04(5) provides that a worker who is discharged for misconduct connected with the employment shall be ineligible for unemployment insurance benefits until seven weeks have passed and until the worker has earned 14 times his or her weekly benefit rate in subsequent covered wages.

Thus, the issue before the commission is whether the employee's actions, which led to the discharge by the employer, constitute misconduct connected with the employment.

The employer contended that the employee's actions constituted misconduct connected with her employment. This contention cannot be sustained.

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 agrees with the appeal tribunal that the decision of misconduct rests upon the seriousness of the employee's decision to repeat her boyfriend's threatening language at work. The repeated language was not a direct threat but was couched in third person language. It referenced breaking Jodi's back and her unworthiness of living in the town in the same sentence as egging her house. The commission treats this statement as a whole as juvenile. Under these circumstances and in light of the prior day's events without any immediate discipline imposed upon the employee or her coworker for their argument, the commission does not find that her decision to repeat the boyfriend's threatening language while describing the situation to another coworker demonstrated such a wilful and intentional disregard of the employer's interests or of its standards of conduct as to constitute misconduct connected with her employment.

The commission therefore finds that in week 22 of 2005, the employee was discharged by the employing unit but her discharge was not for misconduct 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 if otherwise qualified.

Dated and mailed August 25, 2005
jonesas . urr : 150 : 1 MC 668

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

Robert Glaser, Commissioner

 

NOTE: The commission did not consult with the administrative law judge prior to reversing her decision. The commission's reversal does not rest upon a differing view of credibility, in fact, the decision is based on the same facts as found by the ALJ. Instead, the commission reaches a differing legal conclusion as to the egregiousness of the employee's conduct.

 


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