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

SANDY M CORRIGAN, Employe

MILWAUKEE CHAPLET & MFG CO INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98602513MW

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 the applicable law, records and evidence in this case, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe is currently employed as a machine operator and inspector for the employer, a manufacturer. Her employment was suspended for three days in week 12 of 1998, the calendar week ending March 21.

The issue which must be decided is whether the employe's employment was suspended during week 12 of 1998 for good cause connected with her employment.

Wis. Stat. § 108.04(6), provides:

(6) DISCIPLINARY SUSPENSION. An employe whose work is suspended by an employing unit for good cause connected with the employe's work is ineligible to receive benefits until 3 weeks have elapsed since the end of the week in which the suspension occurs or until the suspension is terminated, whichever occurs first. . . This subsection does not preclude an employe from establishing a benefit year during a period in which the employe is ineligible to receive benefits under this subsection if the employe qualifies to establish a benefit year under s. 108.06(2)(a).

On January 22 and on January 27, 1997, the employe received warnings that indicated that she had failed to check parts before dumping, and that she needed to check every pan of parts per the instruction sheet.

On June 4, 1997, the employe had been warned about failing to catch defective parts, resulting in the loss of about 30,000 parts. The employe then wrote out a plan to correct the problem.

On March 11, 1998, the employe was checking pans for defective parts, and if no defective parts were found she was to dump those parts into a drum. Each pan contained about 3,000 parts. The employe found some defective parts at 10:00. The employe then went to the drum where she had just dumped parts, checked it, and discovered bad parts. Altogether there were about 20,000 parts in the bad pan. She shut everything down and went to her supervisor. The employe believed that only the last pan had bad parts. The supervisor mixed up all the pieces in the drum, then took a sample of 566 pieces, of which 367 were defective. The employe was suspended for failing to inspect the pieces. In this case, the employe had dumped parts into the drum and did not notice that the parts were defective until she inspected the next pan. The employe asserted that she checked the parts as instructed by the employer's policy. She was to check five to seven parts from each small pan, and she indicated that she only dumped the pan because she did not find any bad parts. However, there were a significant number of bad parts in the machine. Had she inspected five to seven at random from the small pan of 2,000 it would be almost impossible for her not to have discovered at least one bad part, given the number of bad parts that were found. In addition, it appeared that once the problem started, it continued until the problem was corrected, thus, it must be assumed that there were a large number of bad parts in the last pan, or that the employe failed to carefully check the last pan dumped in the drum at 9:45 as well as prior pans.

Under the circumstances, the employe's failure to properly perform the inspections constituted good cause for her suspension.
The commission therefore finds that in week 12 of 1998, the employe was suspended for good cause connected with her work, within the meaning of Wis. Stat. § 108.04(6).

The commission further finds that the employe was paid $118.00 in benefits for week 12 of 1998 for which she was not eligible and to which she is not entitled, within the meaning of sec. 108.03(1), Stats. Pursuant to sec. 108.22(8)(a), Stats., the employe 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 employe 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 employe is disqualified for unemployment insurance from week 12 through week 14 of 1998. Unemployment insurance is payable as of week 15 of 1998, if the employe is otherwise eligible. The employe is required to repay the sum of $118.00 to the Unemployment Reserve Fund.

Dated and mailed: September 11, 1998
corrisa.urr : 145 : 1  MC 676

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission discussed witness credibility and demeanor with the ALJ who held the hearing. He did not believe that the supervisor mixed the parts thoroughly in the drum, and that the employer did not reach its conclusion on the number of parts which were bad based on a careful survey. The ALJ determined that it was possible for the employe to dump one pan of bad parts into the drum even if she was following procedures. However, the commission disagrees. There were a substantial number of bad parts in the drum, 367, out of 566. The supervisor testified that he mixed up the parts. Even if the defective parts were mainly at the top of the barrel, it would be extremely difficult for the employe to have missed the bad parts had she carefully examined the 9:45 pan. The commission concludes that her failure to carefully inspect the parts amounts to good cause connected to her employment for the suspension, in particular as she had prior warnings for the same problem.

cc: ATTORNEY RUSS MUELLER

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