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

JASON D HOHNSTEIN, Employee

AMERICAN FRICTION WELDING INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07601016WK


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 more than 14 months as a machinist for the employer, a fabricating business. He was discharged on December 20, 2006 (week 51).

The issue is whether the actions for which the employee was discharged constitute misconduct connected with his employment.

Between January 25 and July 31, 2006, the employee was absent due to illness eight times; was tardy seven times, twice due to traffic; was absent due to problems with his girlfriend once; and left work early for unspecified reasons twice.

On August 1, 2006, the employee was issued a written warning (exhibit no. 4) for these attendance issues, and for scrapping two expensive parts. Pursuant to this written warning, the employee received a 3-day disciplinary suspension.

The following represents the employee's attendance record after August 1, 2006: 
   

Date

Incident

Circumstances

8/7/06

Tardy 1 hour

Employer changed start time from 4:30 pm to 3 pm without providing employee opportunity to reschedule meeting with probation officer 
 

8/8/06

Tardy 1 hour

Ran out of gas when fuel filter fell off car 
 

8/17/06

Absent

Employee in car accident 
 

8/29/06

Tardy 4.5 hours

Rental car employee using to drive to work not available when scheduled 
 

11/10/06

Tardy 33 minutes

Employee drove father to medical appointment 
 

12/1/06

Tardy 3 minutes

Snowstorm—other workers late as well—employer excused 
 

12/4/06

Absent

Called in sick—had flu 
 

12//11/06

Absent

Called in sick 
 

12/12/06

Absent

Called in sick 
 

12/13/06

Absent

Called in sick—brought in medical excuse for 12/11-12/13 absences 
 

On December 19, 2006, the employee had a discussion with the operations manager and the second shift foreman after the employee had indicated to the employer's owner that he was dissatisfied with the amount of his annual bonus. During this discussion, the employee stated in essence to the second shift foreman that the foreman "didn't know what the fuck he was doing," or that the employee didn't "know what the fuck" the foreman did. The employer did not rebut the employee's testimony that the foreman swore at the employee all the time and frequently used profanity in the workplace.

Also on December 19, the employee was testing a boring bar on his machine. The part that was being machined at the time took 1 hour and 45 minutes to produce, and the machine did not stop during that time. On December 19, during this process, the employee stepped 10-15 feet away from the machine to retrieve a coolant. When he did so, the boring bar and the $2,000 part broke. The employer did not persuasively rebut the employee's testimony that the boring bar being tested was not appropriate for use on the employee's machine; that the worker who had used that machine earlier in the day had also broken a boring bar; or that the employee's practice, which had been approved by the employer during his training, was to leave his machine running while he was absent during his daily 30-minute breaks or away for other reasons.

The employee was discharged on December 20 due to attendance, directing profanity at his shift foreman, and leaving his machine while it was running.

Even though the employee's attendance record prior to his written warning/suspension on August 1 included eight incidents without valid reason over a period of six months, the absences/tardies after August 1 were either due to the illness of himself or his father, both valid reasons, or resulted from circumstances with compelling mitigating factors. The employee's overall attendance record, particularly during the last months of his employment, does not support a conclusion of misconduct.

In addition, the employer did not persuasively rebut the employee's testimony that the second shift foreman routinely directed profanity at the employee (1); or that the employer had condoned the employee's practice of walking away from his machine while it was running, and that the boring bar being tested by the employer was inappropriate for use on the employee's machine.

As a result, the employer did not sustain its burden to prove misconduct.

The commission therefore finds that in week 51 of 2006, the employee did not voluntarily terminate his employment within the meaning of Wis. Stat. § 108.04(7) but that he was discharged and his discharge was not for misconduct 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 51 of 2006, if otherwise qualified.

Dated and mailed July 20, 2007
hohnsja . urr : 115 : 1   MC 605.01  MC 610.08  MC 640.15

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

 

cc: American Friction Welding, Inc. (Brookfield, Wisconsin)



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Footnotes:

(1)( Back ) See, e.g., Evans v. Internal Investigative Services, UI Hearing No. 98606055MW (LIRC Feb. 5, 1999) (directing profanity at owner not misconduct where employee and owner routinely addressed each other in a vulgar manner without objection).

 


uploaded 2007/07/24