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

KIMBERLY C NORDIN, Employee

AMERICAN LEGION, MONTGOMERY PLANT, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05202197WU


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 five years as a bartender and administrative assistant for the employer, an American Legion post. Her last day of work was October 13, 2005 and she was discharged on October 14, 2005 (week 42).

The issue to be decided is whether the employee's actions, for which she was discharged by the employer, constituted misconduct connected with her work.

The employer held a monthly business meeting at the post on October 13, 2005. The women's auxiliary was also meeting at the post that night. The employee was working as a bartender in the bar area and both groups customarily congregated for drinks and a meal after their respective meetings.

During the business meeting, the employer's executive board made a decision to delay giving raises to the three workers at the employer's golf course. The employee's boyfriend, supervisor of the three workers, was at the meeting and he reported the board's decision to the employee after the meeting. The employee was very upset about this. The employee approached some of the board members and said, "Way to go you guys. Really fucked this up." One of the members said, "Excuse me?" The employee replied "you guys do not have a fucking clue what's going on in this place." A member asked her what she was talking about and she said, "You guys really have your heads up your ass when it comes to the workers." The employee's tone was loud and sarcastic. There were a number of patrons in the area.

The employer argued that the employee's foul language in the presence of post members and patrons amounted to misconduct. The commission agrees.

The employee, in a loud and sarcastic tone, insulted the members of the board. Moreover, the employee used extremely offensive language when she did so. The employee's actions were insubordinate, and demonstrated such a willful and substantial disregard of the employer's interests as to amount to misconduct connected with her work.

The commission therefore finds that in week 42 of 2005, the employee was discharged for misconduct connected with her employment within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employee was paid benefits for weeks 42, 43 and 45 through 53 of 2005, and weeks 1 through 12 of 2006, amounting to a total of $4,776.00 for which she was not eligible and to which she is not entitled, within the meaning of Wis. Stat. § 108.03(1). Pursuant to Wis. Stat. § 108.22(8)(a), the employee is required to repay such sum to the Unemployment Reserve Fund.

The commission further finds that waiver of benefit recovery is not required under Wis. Stat. § 108.22(8)(c), because although the overpayment did not result from the fault of the employee as provided in Wis. Stat. § 108.04(13)(f), the overpayment was not the result of a department error. See Wis. Stat. § 108.22(8)(c)2.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 42 of 2005 and until seven weeks have elapsed since the end of the week of discharge and she has earned wages in covered employment performed after the week of discharge equaling at least 14 times her weekly benefit rate which would have been paid had the discharge not occurred. The employee is required to repay the sum of $4,776.00 to the Unemployment Reserve Fund.

For purposes of computing benefit entitlement: Base period wages from work for the employer prior to the discharge shall be excluded from any computation of maximum benefit amount for this or any later claim. If the employee was also paid base period wages from work by other covered employers, the excluded wages shall be used to determine benefit eligibility. However, any benefits otherwise chargeable to a contribution employer's account shall be charged to the fund's balancing account.

Dated and mailed April 13, 2006
nordiki . urr : 145 : 1 MC 668

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


MEMORANDUM OPINION

The commission discussed witness credibility and demeanor with the ALJ who held the hearing. The ALJ indicated that the employee agreed that what she did was not right. The ALJ found the employee to be a very credible witness and thought that the employee could be an impulsive person. The ALJ considered that the employee told it the way it was. The ALJ further indicated that this was not the employee's normal manner, but that the employee knew and cared about the people who were not going to get bonuses. The ALJ pointed out that the employee had worked for this employer for a long time, without any prior instances of this nature, or any other disciplinary problems at all. While the commission has considered these factors, the employee's actions were so disrespectful, in particular given that the employee made these comments in an area where patrons and members could hear, that a prior warning was not necessary. While the employee may have been disturbed by the outcome of the meeting, that did not justify her behavior.

NOTE: Repayment instructions will be mailed after this decision becomes final. The department will with hold benefits due for future weeks of unemployment in order to off set over payment of U.I. and other special benefit programs that are due to this state, an other state or to the federal government.

Contact the Unemployment Insurance Division, Collections Unit, P. O. Box 7888, Madison, WI 53707, to establish an agreement to repay the over payment.

cc: Attorney James B. Connell


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