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

KATHY S MANKIN, Employee

BAPTISTAS BAKERY INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05606641MW


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 over six years for a manufacturer of baked goods. Her last day of work was August 5, 2005. The employer discharged her on August 7, 2005 (week 33).

The employee was discharged following a series of work place errors which occurred in the last two months of her employment. The employee started in the quality assurance lab in February, after she was laid off from a different position. Prior to that, she had worked in the lab for a total of about a year over three different periods. The employee also received two weeks of training when she was hired in the position.

On June 24, 2005, the employee received a warning for failing to conduct sensory tests of pretzel products. There were no records documenting that the checks were made but the employee and the two workers on the other shifts insisted that they were made. They were all warned that checks needed to be made and documented.

On July 29, 2005, the employee received a second written warning for failing to perform sensory checks of the product from the day before, despite written instructions to do so. The warning mentioned that the employee had been recently counseled for taking too long with her audits and tests.

On August 4, 2005, the employee received a final warning for failing to verify that the product on the line reached the target weight for the package. She never entered the correct weight range in her records. Therefore, her regular checks never alerted her to the disparity. This started on the earlier shift but the employee did not catch it when she came on duty. The employee was warned that her job was in jeopardy and she would be discharged for another incident.

On her last day of work, the supervisor gave the employee a priority job to pull at least 10 bags from several cases of product so that the supervisor could perform a task on them the next day. The employee asked to have the instructions written down and the supervisor did so. The following morning the job was barely begun. The employee explained that she was distracted by questions about a new product on the line and was unaware that the task was a priority. She also was rattled because she had received the August 4 warning that same day.

On August 7, 2005, the employee was discharged because of her continuing work performance issues.

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

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 insurance 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 employer argued that the employee had demonstrated competence and that her failures in performance were so careless that they met the definition of misconduct. The commission disagrees. The employer had counseled her regarding time issues and slowness. Two of the warnings concerned problems which carried over from other shifts suggesting that the employee's carelessness was not the sole cause. The employee credibly testified that she was distracted doing other duties for the employer and sometimes had trouble getting her work done. The commission concludes that the employee's failures in good performance were the result of simple negligence or poor judgment and were not the result of misconduct connected with her employment.

The commission therefore finds that in week 33 of 2005, the employee was discharged but not for misconduct connected with the work within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is entitled to benefits beginning in week 33 of 2005, if she is otherwise qualified.

Dated and mailed March 3, 2006
mankika . urr : 178 : 1  MC 660.01

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


MEMORANDUM OPINION

The commission consulted with the ALJ regarding the credibility and demeanor of the witnesses prior to reversing. The ALJ found the employer's witness very confident and convincing when she testified that the employee was capable of performing her work duties. However, the commission places more weight on the employee's acknowledged difficulty managing her time and priorities and concludes that her errors amounted to mere negligence.

cc: Amy Svoboda


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