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

TIMOTHY J GROCE, Employee

BW-3, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06602623MW


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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employee is ineligible for benefits beginning in week 11 of 2006 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.

Dated and mailed June 26, 2006
groceti . usd : 145 : 4   MC 695  MC 696

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

In his petition for commission review, the employee asserts that the employer failed to establish that his discharge was for misconduct connected with his work. The employee argues that the employer failed to provide any standard or written rules, or regulations, concerning telephone use. The employer's general manager testified that he warned the employee about using his cell phone at work. The employer does not need to have a written rule to cover every possible type of prohibited behavior. The warnings given to the employee serve the same purpose as a written rule, in that the warnings put the employee on notice that he needed to correct his behavior if he wished to keep his job.

The employee further asserts that the employer failed to present any specific instances to show that cell phone use interfered with work. The manager testified that this was primarily a safety issue, and that the employer wanted its workers "on task" because they work in a dangerous environment, with hot grease and hot broilers. The goal of the rule was to prevent injury. As such, it was not necessary for the employer to establish that individual acts of cell phone use adversely affected its business operator in some manner.

cc: BW-3 (Milwaukee, Wisconsin)



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