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

MAURICE J PRESTON, Employee

WILL ENTERPRISES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05605634MW


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 less than 2 years as a general laborer for the employer, a printing, embroidery, and silk screening business. He was discharged on May 13, 2004 (week 20).

The issue is whether the actions for which the employee was discharged constitute misconduct connected with his employment.

During the course of his employment, the employee received several warnings for failing to meet work quality standards. In January of 2003, a prospective reduction in the employee's wages was effected by the employer to address work quality issues. The employee's wages were restored to their original level two weeks later after his performance had shown improvement.

In April of 2004, the employee was demoted to his former position, with an accompanying wage reduction, to address work quality issues.

On May 11, 2004, the employee made two errors. As a result, three shirts were missing from one order, and 14 shirts from a second order were improperly printed.

Goss, the employee's supervisor, discussed these errors with the employee on May 12, 2004, and presented the employee with a "Notice of Job Performance" which stated that the employee would receive a disciplinary wage reduction of 15 cents per hour as a result.

The employee became very angry and belligerent, argued with Goss in a loud tone of voice, and used profanity. The employee's actions disrupted production. Goss tried to calm the employee down but, when he was unsuccessful, sent him home.

After the employee punched in on May 13, 2004, Goss asked to speak to him outside the production area. Goss advised the employee that the 15 cents per hour wage reduction was being increased to 30 cents per hour based on the employee's conduct the day before.

The employee again became very angry and belligerent, argued with Goss in a loud tone of voice, and used profanity. Goss became uneasy being alone with the employee and suggested they move inside to continue their discussion. After they moved inside and the employee continued to argue with Goss, Goss told him to punch out. The employee refused so Goss began to do it for him, and the employee told Goss that he "had better not touch" his time card. Goss and co-worker Eric Powell tried to calm the employee down but were unsuccessful. Goss told the employee to leave the building but he refused until Goss told him he was going to call the police. Goss told the employee he was fired.

The employee was justifiably concerned when he learned on May 12 that he was receiving a 15 cent per hour wage reduction and, on May 13, that this wage reduction had been doubled. However, it is well settled that an employee is not entitled under such circumstances to express such concern in any manner he chooses.

Where, as here, the employee raises his voice and directs profanity at his supervisor, admittedly disrupting the workplace (see, Miller v. Milwaukee Teacher Education Center, UI Hearing No. 02608597MW (LIRC May 19, 2003); Calder v. Peoplease Corp., UI Hearing No. 02004412MD (LIRC Feb. 3, 2003); Piskula v. Midwest Products & Engineering, Inc., UI Hearing No. 02600171MW (LIRC Aug. 28, 2002)); is belligerent to his supervisor (see, Kneubuhler v. Oscar Mayer Foods Corp., UI Hearing No. 96001045MD (LIRC July 12, 1996)); engages in insubordination by refusing to leave the work site; and threatens and attempts to intimidate his supervisor (see, Miller, supra.), a conclusion of misconduct is merited.

The commission therefore concludes that the employee was discharged in week 20 of 2004 for misconduct connected with his employment, within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that waiver of benefit recovery is required under Wis. Stat. § 108.22(8)(c), for any benefits paid from July 8, 2004, through January 25, 2005, due to department error; but that waiver of benefit recovery is not required for any other time period because, even though the employee was not at fault, there was no department error.

The commission further finds that the employee was paid benefits in the amount of $7,010 for which he was not eligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03(1),and that the employee is required, pursuant to Wis. Stat. § 108.22(8)(a), to repay $1,498 of this amount to the Unemployment Reserve Fund.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 20 of 2004, and until seven weeks have elapsed since the end of the week of discharge and the employee has earned wages in covered employment performed after the week of discharge equaling at least 14 times the employee's weekly benefit rate which would have been paid had the discharge not occurred. The employee is required to repay the sum of $1,498 to the Unemployment Reserve Fund.

Dated and mailed December 30, 2005
prestma . urr : 115 : 1   MC 640.05  BR 335.01

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

Robert Glaser, Commissioner



MEMORANDUM OPINION


A department determination dated and mailed on June 3, 2004, found that the employee had been discharged for misconduct and denied benefits as a result. The employee filed a timely appeal of this determination, and hearing on the merits of his claim was held on June 30, 2004.

On July 8, 2004, a department administrative law judge (ALJ) issued an appeal tribunal decision (ATD) concluding that the employee had not engaged in misconduct because his "rancor" and "protestations" upon receiving notice of a disciplinary wage reduction were justified given that such a wage reduction was illegal within the meaning of Wis. Stat. § 103.455.

In an order issued on January 25, 2005, the commission, based on its conclusion that a prospective wage reduction, akin to a disciplinary demotion, was not prohibited by Wis. Stat. § 103.455 or otherwise, and that the ALJ's misstatement early in the hearing that such a wage reduction was illegal could have affected the evidence offered by the parties, set aside the ATD and remanded this matter to the department for hearing before a different ALJ.

The employee failed to appear for the first remand hearing and a dismissal order was issued as a result. However, the employee, upon receipt of this order, contacted the department and represented that he had not received the hearing notice. As a result, a second remand hearing was scheduled to consider the non-appearance issue as well as the misconduct issue. This hearing was held on July 20, 2005. The remand ALJ issued two ATD's-one finding good cause for the employee's failure to appear at the first remand hearing, and the other that the employer had failed to sustain its burden to prove misconduct. In its petition for commission review, the employer did not challenge the good cause finding.

Because of the original ALJ's mistake of law, any overpayment of benefits received by the employee from July 8, 2004 (the date of the first ATD), through January 25, 2005 (the date this ATD was set aside), is appropriately waived due to department error. Overpayment of benefits, if any, paid during any other relevant time period and, in particular, after the remand ATD was issued on August 10, 2005, is not required to be waived because, even though not the fault of the employee, any such overpayment was not due to department error. The fact that the remand ALJ and the commission reached different legal conclusions does not establish error.

The commission did not consult with the remand ALJ before reversing his decision because its reversal was not based upon a differing view as to the credibility of witnesses, but instead upon a differing conclusion as to what the hearing record in fact established and upon a differing interpretation of the relevant law.


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