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

MARK J DIECKMAN, Employee

MYRON L OLSON MASTER CHEESEMAKER LLC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06004282JV


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.(1)

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, except that it makes the following modifications:

Delete the seventh sentence of the third paragraph of the Findings of Fact and Conclusions of Law (the sentence beginning with, "Using an entire litany..."), and substitute therefor the following:

The employee responded by saying, "Fuck you, you fucking asshole. I don't gotta listen to you. You're not my fuckin' boss. You don't sign my paycheck. Fuck you."

DECISION

The decision of the administrative law judge, as modified, is affirmed. Accordingly, the employee is ineligible for benefits beginning in week 41 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 $1,204 to the Unemployment Reserve Fund. The initial Benefit Computation (Form UCB-700), issued on October 20, 2006, is set aside. If benefit payments become payable based on other employment, a new computation will be issued as to those benefit rights.

Dated and mailed February 23, 2007
dieckma . umd : 110 : 1  MC 640.15

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner



MEMORANDUM OPINION

The employee, a cheese factory worker, had a verbal altercation with the plant manager of the facility where he worked. He was discharged for insubordination to a superior. The Appeal Tribunal concluded that the employee was discharged for misconduct connected with his employment within the meaning of Wis. Stat. § 108.04(5). The employee has petitioned for review.

The employee was using hot water to wash off metal carts. Because the room was cool, the hot water created a lot of steam. The plant manager, who happened to come into the room at this point, was concerned that the steam would be harmful to motors on the room's cooling units. Because of this, he turned off the hot water. The employee responded by asking him, "What the fuck are you doing?" The plant manager explained his concern about the effect of the steam on the cooling unit motors and said the employee should use cold water. The employee then directed a number of obscenities at the plant manager and challenged his authority to tell the employee what to do. The plant manager subsequently told the owner of the factory what had happened and what the employee had said, and the owner called the employee in and fired him, telling him that he was being fired for insubordination to a superior.

The administrative law judge's finding, with respect to what the employee said, was: "Using an entire litany of vulgar words he told the supervisor that he was not going to take direction from the supervisor." The commission has modified this finding not because of any disagreement with the administrative law judge's characterization, but simply because it believes it is best in cases such as this to make specific findings as to the conduct that led to the discharge. "With respect to isolated argumentative or insubordinate comments by workers to supervisors, the commission does not automatically find misconduct but analyzes the severity of the comments and the context in which they are made." Scheidt v. Leafguard Of Wisconsin Inc (LIRC, Nov. 24, 2004). Because of the need to analyze the severity of the comments, it is a good idea to be specific about them.

According to the testimony of the plant manager, the employee initially said to him (when the plant manager turned off the hot water), "what the fuck are you doing?", and then said to him (after the plant manager explained what he was doing), "Fuck you, you fucking asshole. I don't gotta listen to you. You're not my fuckin' boss. You don't sign my paycheck. Fuck you." For his part, the employee conceded that after the plant manager turned off the hot water, the employee said "What the fuck," and he also conceded that after the plant manager explained why he had done so he (the employee) then "went off" and swore at plant manager two times, and that he said to him, "Fuck you. You don't sign my paychecks." The modification made by the commission to the findings in this case reflects its view that the plant manager's version of this exchange is more credible.

As the commission noted in Jones v. Children's Rainbow Learning Center (LIRC, May 15, 2003), it has found misconduct in certain cases involving the direction of profanity at a supervisor. See, e.g., Gums v. Kelley Co. Inc., UI Hearing No. 00608487MW (LIRC June 19, 2001) (the employee, who had previously received a final written warning and was aware his job was in jeopardy, when asked by a supervisor why he was not performing an assigned job function, slammed his fist on a table and said, "I don't give a fuck if you are the President of the United States, there is no place to put the foam."); Williamson v. Wendys Old Fashioned Hamburgers, UI Hearing No. 01602441EC (LIRC July 12, 2001) (the employee expressed his unhappiness that the manager was late for a staff meeting and, when the director of area operations told him that there was no place in the restaurant for that kind of attitude, the employee said to the director, "You can just fuck off."); Willis v. Dots Inc., UI Hearing No. 99608510MW (LIRC Feb. 24, 2000)(the employee refused to discontinue a personal call despite repeated directions from her supervisor to do so and swore at her supervisor, said she was not going to "kiss" her supervisor's "ass," and left the work site).

See also, Reilly v. Aluminum Goods Mfg. Co., (Wis. Cir. Ct. Dane County Feb. 8, 1954), 11 Wisconsin Unempl. Ins. Repts. (CCH) 8221(court affirmed commission conclusion that employee's single outburst to supervisor in which she called him "god-damn bastard," was misconduct); Luse v. Mid-City Foundry Company & Ind. Comm., (Wis. Cir. Ct. Dane County Dec. 18, 1963), 11 Wisconsin Unempl. Ins. Repts. (CCH) 8388 (court affirmed commission's decision that employee's single outburst to supervisor described in the court's decision as having been "Oh, fuck you" was misconduct); Lathrop v. DILHR & Presto Products, (Wis. Cir. Ct. Dane County Mar. 12, 1979), 11 Wisconsin Unempl. Ins. Repts. (CCH) 8943(court affirmed commission's decision of misconduct where employee told supervisor "stick it in your ass"); Stribling v. LIRC and Reinhart Foods, Inc., No. 95-CV-006424 (Wis. Cir. Ct. Milwaukee County Mar. 22, 1996), (court affirmed commission's conclusion that employee's outburst, repeatedly and loudly calling his supervisor a "fucking liar," was misconduct).

A number of specific principles have informed analysis of these kinds of cases. For one thing, the commission has noted a distinction between situations in which an employee simply uses obscene or profane language, and those in which such language is specifically and personally directed at someone (such as a supervisor). Sucevich v. Bradley Exterminating (LIRC, June 21, 1991),  Benites v. Amcast Automotive (LIRC, March 27, 1998). The latter situation is, understandably, considered to be more severe. The commission has also noted as relevant the question of whether there is normally a certain degree of coarse language used in the particular workplace. Thus, for example, in Evans v. Internal Investigative Services (LIRC, Feb. 5, 1999) it was noted that the employee and the supervisor routinely addressed one another in a vulgar and indecorous manner. This went, the commission observed, to the question of whether the employee was on notice that the conduct she was terminated for would be unacceptable to the employer. The commission found that "where the employee's conduct had been condoned in the past, her actions in continuing to use profanity in conversation with the employer's owner did not evince misconduct."

The commission has looked to the question of whether an employee discharged for directing profane or obscene language to others (including supervisors) in the workplace had been warned or otherwise put on notice that such conduct could lead to discharge. At the same time, the commission has found in some cases that this was unnecessary because the employee could be expected to know that the conduct was inappropriate and no warning was thus needed. See, e.g., Greenwald v. CUNA Mutual Insurance Society (LIRC, Dec. 23, 2002) (obscene language and gestures in reference to other employees; employee in professional office setting needs no warning to know that the conduct is inappropriate). Finally, the commission has considered relevant the fact that an employee's actions in directing improper language at a superior was spontaneous and unpremeditated, arising from the employee being suddenly surprised by an accusation. Sucevich, supra.

This is a case in which the obscene language was very specifically directed at a superior (as opposed to being used in talking about, or in the presence of, the superior). Furthermore, there was no evidence in the record that such language was commonly used between employees and management, or that this was the extremely unusual workplace where it could be considered tolerable to talk like this to a superior. The case also falls in the category of those in which the conduct is sufficiently egregious that it is not necessary that it have been proved that the employee was expressly warned against it; it is difficult to conceive of any kind of employment situation in which an employee would need to be told in advance that they should not speak to their plant manager as the employee did here. Finally, the employee's conduct here cannot be explained away as merely being a momentary lapse of judgment. The employee testified that he was already angry at the plant manager even before this incident, because of criticisms he believed the plant manager was making of him. It appears that the employee was nursing a grudge against this supervisor and used the final incident as an excuse to vent it. His conduct thus appears more pre-meditated than spontaneous or spur-of-the-moment.

For the foregoing reasons, the commission agrees that the employee was discharged for misconduct within the meaning of Wis. Stat. § 108.04(5).

 

NOTE: The Appeal Tribunal Decision (ATD) was issued on December 6, 2006. It mistakenly indicated on its first page that the employee had not appeared at the hearing.

The employee subsequently mailed a letter to the Madison Hearing Office, which was received there on December 18, well within the 21 days following the issuance of the ATD. This letter expressly stated that the employee wished to appeal the decision; it also referred to the incorrect indication on decision that the employee had not appeared at the hearing. The Madison Hearing Office processed the employee's letter not as a petition for commission review but as an explanation for a failure to appear under Wis. Stat. § 108.09(4)(d). On December 29, 2006, the administrative law judge who had presided at the hearing -- and who had apparently come, by that point, to mistakenly believe that the employee had not appeared at the hearing -- issued an "Appeal Tribunal Decision - Set Aside Decision." This decision purported to set aside the ATD which had been issued on December 6, 2006, and it indicated that a hearing would be scheduled to take evidence regarding the failure to appear at the original hearing.

On January 16, 2007, a notice of hearing was issued scheduling the matter for hearing on the issue of whether the employee had good cause for failing to appear at a hearing. Pursuant to that notice, a hearing was held on January 24, 2007, before a different administrative law judge. In that hearing, the employee explained that he had in fact appeared at the original hearing, albeit 10 minutes late.

Subsequently, on January 25, 2007, the administrative law judge who originally decided the matter issued yet another "Appeal Tribunal Decision - Set Aside Decision." This decision reflected the administrative law judge's recognition that the employee had in fact appeared at the hearing and that there had thus been no failure to appear. This January 25, 2007 "Appeal Tribunal Decision - Set Aside Decision" stated that the Appeal Tribunal Decision issued on December 6, 2006 was reinstated. The decision also stated, however, that the Appeal Tribunal Decision issued on December 6 (sic), 2006 was set aside. The commission is informed and believes that this latter action was not actually intended by the administrative law judge, but was effectively "forced" by the department's software which generates appeal tribunal decisions, and which automatically inserted the December 6 date in a way which could not be overridden.

The commission concludes that the both the December 29, 2006 "Appeal Tribunal Decision - Set Aside Decision," and the January 25, 2007 "Appeal Tribunal Decision - Set Aside Decision," were issued without any authority and are in effect nullities. There was no authority to issue the December 29, 2006 decision because there had in fact been no failure to appear, and thus no authority under § 108.09(4)(d) to set aside the original decision, and no other authority to set aside the original decision under § 108.09(4)(f) because more than 21 days had elapsed since the issuance of the original decision. There was no authority to issue the January 25, 2007 decision for the same reason, that is, that more than 21 days had elapsed since the last decision issued by the administrative law judge with any valid authority. Therefore, all that remains in this case is the December 6, 2006 Appeal Tribunal Decision, and the timely petition for review from that decision. The commission acts under its authority in § 108.09(6) to review the December 6 ATD based on that petition.



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Footnotes:

(1)( Back ) A number of further procedural developments occurred at the Hearing Office level after the filing of the petition. These developments do not affect the outcome herein. See NOTE, infra at p. 4.

 


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