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


VELMA L JOHNSON, Employe

SODEXHO MARRIOTT EDUCATION SERVICE INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98602844RC


On April 11, 1998, the Department of Workforce Development issued an initial determination which held that the employe was discharged for misconduct connected with her employment. The employe filed a timely request for hearing on the adverse determination, and hearing was held on May 11, 1998 in Racine, Wisconsin before a department administrative law judge. On May 21, 1998, the administrative law judge issued an appeal tribunal decision affirming the initial determination. The employe filed a timely petition for commission review of the adverse decision, and the matter now is ready for disposition.

Based upon the applicable law and the records and other evidence in the case, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe in this case worked approximately two months as a dishwashing room attendant for the employer, a contract food service concern. The employer discharged her on March 6, 1998 (week 10) for her part in a verbal altercation with a subordinate. The commission believes the employe's participation in this incident falls short of misconduct for unemployment insurance purposes, particularly given the subordinate's actions, and so reverses the appeal tribunal decision.

The incident in question, and the sole reason the employe was discharged, occurred at approximately 6 p.m. on March 1, 1998. The employe had authorized two other attendants to take a short break before the dinner rush at the college to which they were assigned. The subordinates declined to take the break, in order to be able to leave work sooner. When the employe returned from her break, one of the subordinates was eating food from a pot of leftovers from brunch earlier that day. He was doing so next to a "pulper," into which such leftover food was to be dumped. The employe told the subordinate to get a plate, so he was not in the way of the dumping of the pots that had to occur. When the subordinate left the pot he was eating from to get a plate, the employe dumped the food from the pot into the pulper. At that time, there still remained a fair amount of food on the cart next to the pulper. When the subordinate saw what the employe had done, he threw a plate against the wall next to which the employe was standing, and began yelling at the employe. The employe told the subordinate she was going to have him punch out, and went to find a student manager. The subordinate followed behind the employe, yelling at her and indicating that he was going to "beat her ass." After this behavior, the employe told the subordinate that if he did not stop messing with her he would get his wish. The employer discharged both the employe and the subordinate for the incident.

Misconduct for unemployment insurance purposes is the intentional and substantial disregard by an employe of standards an employer reasonably may expect of its employes. In finding misconduct, the administrative law judge reasoned that the employe knew the subordinate would be upset by her dumping the pot of food the subordinate had been eating from. That may have been an instance of poor judgment on the employe's part, but it is insufficient to contribute to a finding of misconduct by the employe. The employe's unrebutted testimony was that the subordinate was not supposed to have been eating from the pot in the first place. In addition, the subordinate had specifically declined to take a break, so he should not have been standing around eating in any event. Third, the employe's response to the subordinate's throwing the plate was in line with the employer's expectations. The employer's food service director testified that, in such a situation, he would have asked the subordinate to leave and have gone to look for a supervisor for assistance. That is exactly what the employe did.

There is little question but that it was injudicious of the employe to have stated to the subordinate that he would "get his wish" if he kept messing with her. This statement must be placed in context, however. The subordinate had just thrown a plate at the employe and was yelling at her and threatening to beat her ass. Under these circumstances, the statement is properly characterized as an instance of poor judgment, and not as the intentional and substantial disregard of an employer's interests which is misconduct for unemployment insurance purposes. The commission therefore finds that, in week 10 of 1998, the employe was discharged but not for misconduct connected with her employment, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The appeal tribunal decision is reversed. Accordingly, the employe is eligible for benefits if she is otherwise qualified.

Dated and mailed: September 18, 1998
johnsve.urr : 105 : 6 MC 669

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

NOTE: The commission did not confer with the administrative law judge before determining to reverse the appeal tribunal decision. Such conferral is required where the commission is considering reversal of an appeal tribunal decision on the basis of a differing credibility assessment from that made by the administrative law judge. The commission has accepted the facts as found by the administrative law judge; the commission simply concludes that those facts do not meet the legal definition of misconduct under Chapter 108.

 

PAMELA I. ANDERSON, COMMISSIONER (Dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. I agree with the administrative law judge that employe should have known that throwing away food that the co-worker was eating would cause problems. This was especially true where the employe has told the co-worker to get a plate to eat the food and when he returns the food has been thrown out. Since the employe had not had good relations with the co-worker who also had a bad temper, she had to know it would cause a confrontation. Thus, I would affirm the appeal tribunal decision.

Pamela I. Anderson, Commissioner


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