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

RONALD J COFFEY, Employee

SHARPE FABRICATION INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07603052MW


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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employee is ineligible for benefits beginning in week 15 of 2007, 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.

Dated and mailed August 27, 2007
coffero . usd : 115 : 1   MC 640.05

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

Ann L. Crump, Commissioner

MEMORANDUM OPINION


The employee worked three months in the shipping and receiving unit of the employer, a manufacturer.

On April 11, 2007, the employee participated in a production meeting. At the end of this meeting, certain workers were asked to stay for a second meeting. The employer testified, through its production manager Cindi Klumb (Klumb), that it asked all shipping and receiving workers to stay. The employee testified that he understood that only department heads were asked to stay. The administrative law judge (ALJ) credited the employer in this regard, and the commission has found no persuasive reason to overturn this credibility determination.

The workers excused from the first meeting were permitted to leave the work site before the end of their scheduled shifts. These shifts ended at 4:30 p.m., and the first meeting ended at 4:15 p.m., and the second by 4:30 p.m.

The employee did not stay for the second meeting, but instead punched out before the end of his shift, and left the premises. He was intercepted, however, by another worker who advised him that Klumb, who had remained in the meeting room, wanted to see him. The employee returned to the meeting room.

The employee concedes in his testimony that, when he returned, Klumb told him that he was required to stay for the second meeting. Specifically, the employee testified, after Klumb asked him where he was going and he told her he was going home because it was snowing, Klumb stated (see page 6 of synopsis), "Well, we need you to stay here." The employee further testified (see page 7 of synopsis) that, after he asked Klumb whether he could come in early the next morning instead, she said he needed to "be at this meeting;" and (see page 8 of synopsis) that Klumb "made it clear to me that I was to remain for the meeting." Although the employee testified (see page 6 of synopsis) that, after he and Klumb exchanged words, "she acted like everything was okay, and fine," his later testimony establishes that he clearly understood that Klumb was directing him to remain at the second meeting.

It is undisputed that, after the employee's conversation with Klumb, he did not stay for the second meeting but instead left the work site prior to the end of his scheduled shift. Although the employee, in his petition, includes his time card for April 11, which, according to the employee, indicates he punched out at 4:30 p.m., not before, this evidence is not in the hearing record and may not be considered by the commission.

Generally, refusal to follow a reasonable employer directive is misconduct. However, a single isolated incident of disobedience is not misconduct if the employee has a defensible reason for it. Bauer v. Fisher, UI Hearing No. 99003155 MD (LIRC Jan. 31, 2000); Erickson v. LIRC and Create-Ability, Inc., Case No. 96-CV-2819 (Dane Co. Cir. Ct., Aug. 7, 1997); Casper v. Brakebush Brothers, UI Hearing No. 02006072BO (LIRC April 4, 2003)(employee's insubordinate refusal to go to her second-level supervisor's office when instructed to do so by her supervisor misconduct); Depeau v. Moore North America Inc., UI Hearing No. 99400659GB (LIRC Sept. 23, 1999)(employee's refusal to comply with employer's reasonable request that he report to the human resources office misconduct).

Here, the employee refused to follow a reasonable employer directive that he stay for the second meeting. The employee's reasons for not attending this meeting were that it was snowing outside, he had a long drive home, and the tires on his car were bald; and that he already had punched out and had his coat on.

These reasons are not sufficient to justify the employee's insubordinate refusal to remain at work, during his scheduled work hours, for the second meeting. It is reasonable to conclude from the competent evidence of record (1)  that the short stay the second meeting would have required of the employee, which would not have extended beyond the 4:30 p.m. end of his scheduled shift, would not have resulted in significantly different road conditions than existed at the end of the first meeting. Moreover, it would have taken little effort for the employee to remove his coat and have his time card modified.

The employee argues that the employer was required to apply the steps in its progressive discipline policy before discharging him. However, to support a conclusion of misconduct, an employer need not first resort to some lesser degree of discipline than discharge even when it has a progressive discipline policy. Gipson v. Marian Catholic Center, Inc., UI Hearing No. 98601313MW (LIRC March 17, 1999; Nordberg Mfg. v. DILHR and Morgan, Case No. 145-359 (Dane Co. Cir. Ct., July 16, 1975) (an employer need not first resort to some lesser degree of discipline than discharge merely because the conduct was the first offense, even when the employer has a progressive disciplinary policy).

In addition, to support a conclusion of misconduct, prior warning to a worker that his job is in jeopardy or will be if he engages in the subject conduct, although generally required, is not required when the subject action is sufficiently egregious. See, Hainz v. Nelson Industries, Inc., UI Hearing No. 00003095MD (LIRC Oct. 3, 2000); Marcolini v. Alma Public Schools, UI Hearing No. 78-20774EX (LIRC May 29, 1979); Kovach v. Farm/Fleet Janesville, Inc., UI Hearing No. 05005166WK (LIRC Feb. 24, 2006). Knowing violation of a reasonable supervisory directive, as here, has been held to be sufficiently egregious to satisfy this exception. See, Mickey v. AmericInn Lodge & Suites, UI Hearing No. 06400242AP (LIRC May 12, 2006).

Finally, there is some dispute whether the employee told Klumb, after she directed him to stay for the second meeting, that it was a "dumb meeting." First of all, resolution of the misconduct issue does not depend upon whether the employee said this or not. Moreover, the ALJ credited the employer's testimony in this regard, and the commission has found no persuasive reason to overturn this credibility determination.



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Footnotes:

(1)( Back ) It was inappropriate for the ALJ to interpose facts from his personal knowledge regarding the snow storm on April 11 into the hearing record, and the commission did not rely upon these facts in reaching its decision.

 


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