ROBERT M JAUQUET, Employee

MASSES INC, Employer

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.

The decision of the administrative law judge is affirmed. Accordingly, the employee is ineligible for benefits beginning in week 13 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. The employee is required to repay the sum of $2,046 to the Unemployment Reserve Fund.

Dated and mailed August 11, 2006
jauquro . usd : 115 : 8  MC 687 MC 696

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

There were "no smoking" signs posted on the inside of the door from the warehouse to the loading dock as well as in other areas of the warehouse, and "flammable" and "inflammable" signs posted on cabinets in the warehouse where chemicals were stored.

On March 22, 2006, the employee admitted to the employer's owner that he had been smoking while working at a table in the warehouse 3-4 feet away from these chemical storage cabinets. The owner warned the employee that smoking in that area was grounds for immediate discharge. From his testimony, it is apparent that the employee had been aware prior to this warning that smoking in that area was not permitted. The employee testified that he had not, however, been aware prior to this warning that it would be grounds for immediate discharge.

On March 27, 2006, the employee was observed by a crew supervisor lighting up a cigarette in the warehouse on his way to, and 5-8 feet away from, the door to the loading dock, in the same general area where he had been smoking on March 22. The crew supervisor reminded the employee that he was smoking in an area where it was prohibited and suggested the employee come out the door to the loading dock. Although the employee did so, he stated he did not understand why it mattered whether he smoked on the warehouse side of the door or the loading dock side. The crew supervisor reported this incident to the owner.

The employee was discharged on March 29, 2006, for these two incidents of smoking in the warehouse.

Although the incident of March 22, standing alone, would not justify the employee's discharge in view of his lack of prior notice that smoking in the warehouse would jeopardize his employment, the incident of March 27, five days after he had received this notice, would support a conclusion of misconduct. It presented an obvious and significant safety risk for a lighted cigarette to be in the vicinity of the chemical storage cabinets in the warehouse, and the employee had been advised just five days earlier that it was not permitted and could lead to his discharge. See, Schrage v. Best Buy Stores, UI Hearing No. 02401440AP (LIRC Sept. 27, 2002)(employee's second violation of employer's no smoking policy five days after warning that further violations would subject him to discharge, was misconduct).

The employee contends that a "no smoking" sign had not been present on the inside of the door from the warehouse to the loading dock during his employment. However, the administrative law judge credited the testimony of the crew supervisor that the "no smoking" sign on this door, pictured in Exhibit #2, had been there for a period of years prior to the employee's discharge. In addition, the employee effectively admits in his testimony that he had been aware, prior to March 22, that smoking was not permitted in the warehouse area and acknowledges that he had been so advised by the owner on March 22.

The employee also contends that the crew supervisor had observed other workers smoking in the warehouse without any warning or consequence. However, the administrative law judge credited the crew supervisor's testimony that he could not recall seeing any other worker smoking in the warehouse area.

The commission found no persuasive reason in the record for reversing the administrative law judge's credibility determinations.

It is noted that the employee was on light duty as the result of a work-related injury prior to his discharge, i.e., that a motive for the employee's discharge other than the smoking incidents existed. However, the employee testified that, during his meeting with the owner on March 29, prior to being discharged, he informed the owner that he would now be able to resume his former full-time duties.

[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]

uploaded 2006/05/15