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


KERRY L BULTMAN, Employe

TAMARACK INTL INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98200644RL


On April 16, 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 timely filed a request for hearing, and hearing was held on May 18, 1998 in Rice Lake, Wisconsin before a department administrative law judge. On May 27, 1998, the administrative law judge issued an appeal tribunal decision affirming the initial determination. The employe timely filed a petition for commission review of the adverse appeal tribunal 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 worked just under two years for the employer, a medical supply manufacturer. The employer discharged her on April 2, 1998 (week 14), for having directed profanity at a co-worker earlier that day. Based upon the totality of the circumstances, the commission believes the employe's use of profanity was an isolated instance of lack of judgment, and not misconduct for unemployment insurance purposes. The commission therefore reverses the appeal tribunal decision.

On the evening of April 1, the employe's supervisor asked her to come in early the next morning. There was a certain order which had to have the highest priority by the employe and her co- worker. The order had to get to the floor, or the workers on the floor would run out of work. The employe did come in early on April 2, and begin work. Shortly thereafter, the co-worker in question, a Joan Wagner, came in to work as well. The employe came over to her and asked her what order she was working on. Wagner "snapped" at her and said, "I don't know, whatever order you gave me yesterday." The employe said, "I need this order out on the floor." Wagner then came over to the employe, stuck her finger in the employe's face, and said "Bullshit. I don't have to switch my machine over. I don't have to do what you tell me." The employe then responded, "I need the fucking order on the floor in two hours." The employer discharged the employe later that day.

The employe had previous warnings for work errors and attendance, and a three-day suspension for attendance failures. The employer's policy is to allow a verbal warning, a written warning, and a suspension prior to discharge, but the disciplines do not all have to be for the same kind of infraction.

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 another context, the employe's language could and in fact has constituted misconduct for unemployment insurance purposes. In the present context, though, it does not. The employer's human resources manager testified that the employe would not have been discharged if the employer had found that Wagner had provoked the altercation. But Wagner did provoke the altercation, with the initial instance of profanity at the employe, coupled with her gestures. Further, although the employer insisted that the employe had no supervisory authority, yet no one disputed the employe's testimony that she had been told to take responsibility to attempt to make things flow well on the floor. In addition, Wagner's initial response to the employe was that she (Wagner) was working on whatever the employe had given to her the previous day. Thus, even if the employe was not formally Wagner's supervisor, the employe still provided at least informal direction to Wagner as to work to be performed. Finally, that the employe even was at work at the time was because of the priority of the order and her supervisor's request that she report to work early on April 2. Given these factors the employe's response to Wagner, while inappropriate, yet was not so egregious as to constitute misconduct for unemployment insurance purposes.

The commission therefore finds that, in week 14 of 1998, the employe was discharged but not for misconduct connected with her employment.

DECISION

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

Dated and mailed: October 6, 1998
bultmke.urr : 105 : 6 MC 668

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/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 and credibility was an issue in the administrative law judge's fact-finding. The commission has found essentially the same facts as did the administrative law judge; the commission simply believes that those facts do not lead to the conclusion of misconduct.

cc:
ATTORNEY MICHAEL O ERSPAMER


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