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

GREGORY D WAGENKNECHT, Employee

MARQUIP LLC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07200626EC


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 about four and one-half years as a machine operator for the employer, a manufacturer of equipment such as corrugating machines and pasteurizers. His last day of work was March 2, 2007 (week 9). He was discharged by the employer on March 6, 2007 (week 10).

The issue to be decided in this case is whether the employee's discharge was for misconduct connected with his employment.

There was another worker that made remarks or played jokes on the employee that were embarrassing for the employee. The employee eventually complained to the human resource manager in August of 2005. Although the employee did not want to file a formal complaint, the human resource manager spoke to the worker who the employee was complaining about, as well as others.

Within a week of the employee's last day of work, the employee had taken two small pieces of steel, put them into his pocket, and took them home without obtaining permission. The worker whom the employee had complained about to management, reported that the employee had taken material without permission. Management personnel spoke with the employee about taking the material and told the employee to be sure to obtain permission in the future, and to not speak to anybody else about the matter.

On March 1, 2007 (week 9), snow melted on the floor of the employee's work area. A co-worker asked the employee if he needed a diaper. The employee looked up and saw the worker, who he had previously complained about, laughing. The employee believed the worker he complained about put the other worker up to making the comment. The employee told a third worker, "to tell his friend that he would get even." The friend being referred to was the person who he had previously complained about. The employee was discharged for making what was considered a threatening remark, after being told not to speak to anyone about the matter.

In Boynton Cab Co. v. Neubeck & Ind. Comm., 237 Wis. 249, 296 N.W. 636 (1941), the leading case with respect to the meaning of the term "misconduct" as applied to unemployment insurance in the United States, the court said, in part, as follows:

" . . . the intended meaning of the term 'misconduct' . . . is limited to conduct evincing such wilful or wanton disregard of an employer's interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer's interests or of the employee's duties and obligations to his employer. 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' within the meaning of the statute."

The employee's comment was prompted not by the incident of removing scrap, which he had been admonished not to speak about, but the puddle incident. The employee's comment that he would "get even" was an indication he was going to monitor the worker that had reported him. The employee meant that he was going to document and report any conduct he found objectionable to the employer. The comment was vague and admittedly could be subject to a different interpretation. However, the employee had no prior discipline for violence or threats of violence and given the context of the events the commission concludes that the employee intended to monitor his co-worker's behavior and report either practical jokes or misbehavior, and adopts the employee's explanation of his intentions.

The commission therefore finds that in week 9 of 2007, the employer discharged the employee but not for misconduct connected with his work 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 9 of 2007, if he is otherwise qualified.

Dated and mailed August 23, 2007
wagengr . urr : 132 : 1 : MC 666.01

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

The commission did consult with the ALJ who presided at the hearing regarding her impressions of witness credibility and demeanor. The ALJ found the employer's director of human resources to be very matter of fact in her testimony and credible. The ALJ indicated that she did not credit the employee's explanation as to the meaning of the statement leading to his discharge, as he had not followed through on his previous complaint to the director of human resources. The hearing was conducted by telephone. The ALJ did not impart any impressions gleaned from the employee's tone of voice or manner of speaking that caused her not to credit the employee's testimony. The commission believes that the fact the employee had complained in the past indicates a willingness to report the co-worker rather than take matters into his own hands.

cc: Marquip, LLC (Phillips, Wisconsin)


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


uploaded 2007/08/27