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

WILLIAM P SILVANI, Employee

PICK N SAVE MEGA FOODS, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05608935RC


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 approximately two-and-a-half months as a produce manager for the employer, a grocery store. His last day of work was November 11, 2005 (week 46), when the employer discharged him.

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

When the employer hired the employee, it provided him with a handbook that contained a harassment policy. Under the policy, harassment included "gender based jokes, comments, insults, or slurs."

In November of 2005, the employee was stressed about working a significant number of hours. On two occasions, he called female co-workers a "bitch," though not to their faces. On one of those occasions, he stated that a co-worker's lack of assistance was "bullshit." In a separate incident, he used the word "fuck" after slicing his finger open.

That same month, the employee spoke with a male worker under his supervision. This individual complained that a prior manager had allowed certain female personnel to unfairly receive time off work, possibly because they were attractive. The employee responded, "I don't play that game. I don't go after that pussy." He also claimed that "I never kiss anybody's ass."

After some workers brought the employee's comments to the employer's attention, the employer discharged him for acting inappropriately and violating the harassment policy.

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 employee contended that he commented as he did because of stress. He also claimed that he never swore at anyone and that, on certain occasions, he was just joking. The employer did not bring any firsthand evidence to dispute his contentions in this regard.

The employee had never been warned that his actions amounted to misconduct. Further, the employee's comments were not threatening. The employee did not call anyone names, rather he referred to them in an uncomplimentary manner behind their backs. The employee did use vulgar language when referring to the attractive co-workers getting time off from the prior manager. However he was referring in kind to that worker's complaint that the former manager would give the pretty women time off because he "wanted to get into their pants." Clearly, the employee used poor judgment when he made any of these comments. However, without a warning, the employee's actions were not such a willful and wanton disregard of the employer's interests as to amount to misconduct connected with his work.

The commission therefore finds that in week 46 of 2005, the employee was discharged but not for misconduct connected with his work, 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 46 of 2005, if otherwise qualified.

Dated and mailed March 27, 2006
silvawi . urr : 145 : 8  MC 668

James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


MEMORANDUM OPINION

The commission did not discuss witness credibility and demeanor with the ALJ who held the hearing. The commission did not reverse the ALJ because of a different impression of witness credibility and demeanor. The employee was the only witness with firsthand evidence about his use of vulgar language. Rather, the commission reversed the ALJ because it reached a different legal conclusion when applying the law to the facts found by the ALJ.

 

cc: Mega Marts Inc. DBA Pick N Save Warehouse - Milwaukee, WI


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