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

BARBARA G BECKOM, Employee

PATRICK CUDAHY INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06607759MW


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 four and one-half years as a machine operator for the employer, a meat processing business. Her last day of work was November 17, 2006 (week 46).

Upon hire, the employee received a copy of the employer's work rules, which are broken into several categories. For the "Other" and "Safety" offense categories, one or more violations:

may be cause for discharge, but for bargaining unit employees this will normally happen only after other disciplinary action has been taken and/or depending on an employee's prior disciplinary history of commission of any of these or the same offense(s).

"Failure to shut down and lockout a machine before cleaning, oiling, repairing or adjusting it" is a listed safety offense. No evidence was offered to establish that the employee ever received a discipline for failing to properly lockout a piece of equipment prior to her last day of work. Instead, the employee's prior disciplinary record consisted of a July 2005 discipline for interfering with the work of another and a September 2006 discipline for leaving her work area and threatening a co-worker. With respect to the September incident, after the employee and a worker were involved in a verbal altercation, the employee reported the situation to a supervisor and indicated to the supervisor that, if the worker felt that way, the worker could meet the employee across the street after work. The employee's comment to the supervisor apparently prompted the discipline which included a ten-day suspension and a warning that any continuation of the same or similar action would result in further disciplinary action up to and including discharge.

On November 17, 2006, the employee was working on a machine under circumstances that called for the use of a lockout device that would prevent the machine from being turned on and creating a serious safety hazard. She failed to use the lockout device explaining that her lockout device was in the possession of a co-worker who was not in her vicinity at the time. While the employee could have accessed a lockout device, she instead asked a co-worker to monitor the machine's "on/off" switch. The co-worker was not visible to the employee continuously while she worked on the machine. The employee was aware that she was not in compliance with the employer's established policy and procedure regarding use of a lockout device. A supervisor observed the employee's behavior and confronted her about failing to properly lockout the machine. Later that day, the employee was discharged.

Section 108.04(5) of the Wisconsin Statutes denies unemployment insurance benefits to a worker who is discharged for misconduct connected with the employment. Thus, the issue to be decided is whether the employee's actions, which led to the discharge by the employer, constitute misconduct connected with the employment.

The employer contended that the employee's discharge was for misconduct connected with her employment. This contention cannot be sustained. Misconduct connected with employment means conduct showing an intentional and substantial disregard of the employer's interests or of the employee's job duties and obligations. Boynton Cab Co. v. Neubeck & Ind. Comm., 237 Wis. 249 (1941).

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" with in the meaning of the statute. Boynton at 260.

No evidence was offered that the employee was ever previously disciplined for failing to properly "lockout" a piece of equipment; November 17, 2006 was the first and only such safety violation. In Dixie L. Mezera v. 3 M Co., UI Dec. Hearing No. 04006139MD (LIRC April 15, 2005), the commission found a worker's one time failure to put safety blocks in place, contrary to policy, and after being placed on a performance plan due to production quality control errors, was an isolated incident of poor judgment, not a continuing pattern of negligence so as to constitute misconduct connected with the employment. In this case, the commission reaches the similar conclusion that the employee's one time decision to have a coworker watch the "on/off" switch instead of acquiring and using a lockout device, was an isolated incident of poor judgment and that this incident, even in light of the unrelated warning that her job was in jeopardy, did not constitute misconduct as defined in Boynton Cab Co. v. Neubeck & Ind. Comm., 237 Wis. 249 (1941).

The commission therefore finds that in week 46 of 2006, the employee was discharged but not for misconduct connected with her work for the employer within the meaning of Wis. Stat. § 108.04(5).


DECISION

The appeal tribunal decision is reversed. Accordingly, the employee is eligible for benefits beginning in week 46 of 2006, if otherwise qualified.

Dated and mailed May 10, 2007
beckoba . urr : 150 : 1 MC 695  MC 675

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

 

NOTE: The commission did not confer with the administrative law judge prior to reversing his decision because its reversal was not based on a differing view as to credibility of witnesses, but instead upon a different legal conclusion on the undisputed facts.


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