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

LEE BATES BEY, Employee

ORION CORP ALBANY/CHICAGO CO, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06603569RC


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 about seven years as a tool set-up man for the employer, a manufacturer of heavy trucks. The employee's last day of work was April 25, 2006 (week 17), when he was discharged.

The issue to be decided is whether the employee's actions, which led to the discharge by the employer, constitute misconduct connected with his 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' within the meaning of the statute."

On April 21, 2006, a supervisor observed the employee using the employer's telephone in the training room, with the lights off.

The supervisor issued a written warning to the employee for using the company phone without permission. The employee had no prior discipline for using the phone. The employer then pulled up the phone log for that particular phone and determined that the employee had used the phone to contact his home on numerous occasions. On Monday, April 24, 2006, the employer met with the employee and informed him that he was to be transferred to a machine operator position. The employee became upset and stated, several times, "Just fire me. That's what you want to do is fire me." The human resources leader, after this occurred four or five times, decided to discharge the employee. The human resources manager did not intend to discharge the employee for the telephone violation and only gave him a verbal warning. However, the employer decided to discharge him because he had a difficult time accepting the disciplinary action.

The employee agreed he had used the phone in question on a daily basis because his wife was quite ill, and he would call her to see whether she was okay. The employee feared that if his wife were to become incapacitated she would not have been able to call him. The employer's phone log indicates that the calls were of extremely short duration, generally less than three minutes.

The employee argued that his discharge was not for misconduct connected with his work. The commission agrees. The employee should not have been using the employer's phone at work and without specifically requesting the employer's permission. However, the employee was motivated by concern for his wife. Further, the employer did not intend to discharge the employee over the phone use. It issued a verbal warning for that. The employee was discharged because he had a difficult time accepting the discipline. He repeatedly voiced his opinion that the employer was trying to get rid of him. While his defensive attitude did not appear to be justified, and while the employee was being somewhat difficult, he did not make any disrespectful, threatening or insubordinate comments to the human resources leader. The employee's actions merited some discipline by the employer. However, the employee's comments did not evince such a willful and substantial disregard of the employer's interests as to amount to misconduct connected with his work.

The commission therefore finds that in week 17 of 2006, the employee was discharged from his work for the employer, but that his discharge was 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 17 of 2006, if otherwise qualified

Dated and mailed September 29, 2006
batesle . urr : 145 : 1   MC 640.05  MC 665.01

/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 determined, based on the fact that the employee was using the phone with the lights out in a closed room, that the employee did not have his supervisor's permission to use the phone. However, the ALJ believed that the employee was calling home on a daily basis because he was concerned about the health and safety of his wife. The ALJ noted that the employer attempted to work with the employee and the employee repeatedly told the employer to go ahead and fire him, until the employer finally gave up and did so. Finally, the ALJ indicated the employee was convinced that there was a conspiracy against him. While the commission did not believe the evidence established any kind of a conspiracy against the employee, the commission determined that the employee's behavior was not motivated by belligerence but because he was upset since he believed that the employer intended to fire him. While the employer may have made a valid business decision when it discharged the employee, the commission concludes his actions did not rise to the level of misconduct connected with his work.


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