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

ANGELA T WILKINS, Employee

HELWIG CARBON PRODUCTS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07604167MW


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 about a year for the employer. Her last day of work was May 16, 2007 (week 20), when she was discharged.

The employer had an attendance policy that provided that workers would be given either a half or whole point for each instance of unapproved time off. Workers could earn points back for having perfect attendance. Points were removed after one year. Workers would have a verbal warning after reaching six points during a 12-month period. Workers would receive a written warning after reaching seven or more points. Workers receiving eight or more points would get a second written warning and a three-day suspension. Finally, workers reaching nine points would be discharged. During her last year of employment, the employee had been absent and had received discipline. The employee was at 8.5 points on January 15, but went over nine points with four consecutive absences, thus the employee had 12.5 points. However, she was given only a final warning at that time and not discharged because given her consecutive absences she would not have received all the disciplinary steps prior to discharge.

The issue to be decided is whether the employee was discharged for misconduct connected with her work.

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."

On May 15, 2007, the employee was given a write up because she had made a mistake on an order. The employee became upset about the fact that she had been given a write up. At 8:30 a.m. the employee went into the bathroom and cried because she believed she did a great many orders correctly and should not have been written up for one mistake. About five minutes later the employee returned to her machine. The assistant supervisor came over and asked what was wrong. The employee explained the situation and informed the assistant supervisor that she was really upset. The employee said she needed to leave because she was upset. The assistant supervisor talked to the employee for about ten minutes, and told the employee to calm down and to stay at work. The assistant supervisor left around 8:45. The employee worked for about 15 minutes. The assistant supervisor returned about 9:00 and asked if the employee was okay, then said she would return later to check on the employee. The employee worked for another 30-40 minutes and then her supervisor came over and informed the employee that the assistant supervisor said the employee was thinking of leaving the workplace. The supervisor informed the employee that if she left, she would get a half-point. The employee informed the supervisor that she would take her chances. She worked until her break which was at 10:00 a.m. She spent her 15-minute break outside. She returned from her break and left without informing anybody that she was going. The employee did not ask for a longer break in order to calm down. She decided she would leave because her supervisor was at work and she wanted to slap him. She did not contact the employer that day. She returned to work the next day and was informed that she was going to be discharged.

The employee asserted that her discharge was not for misconduct because she believed she needed to leave because she was upset and that she was not aware that she would have been discharged. The commission disagrees. The employee was over the number of points that would normally result in discharge at the time of the incident. The employee's supervisor specifically informed her that she would get a half point if she left early. The employee informed the supervisor that she would take her chances, suggesting that she knew she would face discipline and given the number of attendance points that the employee had, it was reasonable to assume that she would be discharged. The commission did not find the employee's statement that she did not understand, after the final warning, that unless she reduced her points to less than seven she would be discharged, despite the fact that this was read to her, to be credible. At any rate, the employee's actions in walking off the job because she was upset were insubordinate. While the employee was upset, the employee had several discussions about the matter with the assistant supervisor, who specifically informed her that she should not leave. The employee's actions in walking off the job, under the circumstances in this case, amounted to such a willful and substantial disregard of the employer's interests as to amount to misconduct connected with her work.

The commission therefore finds that in week 20 of 2007, the employee was discharged for misconduct connected with her work, within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employee was paid benefits during weeks 20 through 23, 27 of 2007, 32, 33 and 35 of 2007, and weeks 40 through 43 of 2007, amounting to a total of $2,625; of which $337, already recovered, is included in overpayment amounts set forth by three notices of overpayment (forms UCB-37) dated September 6, 2007 and September 20, 2007, for which she was not eligible and to which she was not entitled, within the meaning of Wis. Stat. § 108.03 (1), and pursuant to Wis. Stat. § 108.22 (8)(a), she is required to repay such sum to the Unemployment Reserve Fund.

The commission further finds that waiver of benefit recovery is not required under Wis. Stat. § 108.22 (8)(c), because although the overpayment did not result from the fault of the employee as provided in Wis. Stat. § 108.04 (13)(f), the overpayment was not the result of a department error. See Wis. Stat. § 108.22 (8)(c)2.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 20 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. The employee is required to repay the sum of $2,625.00 to the Unemployment Reserve Fund. The employee requalified as of week 36 of 2007, but because her misconduct finding reduced the maximum benefit amount to $862, her unemployment insurance benefits now exhaust in week 40 of 2007.

Dated and mailed November 8, 2007
wilkian . urr : 145 : 1 MC 605.01  MC 640.01

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

The commission discussed witness credibility and demeanor with the ALJ who held the hearing. The ALJ did not specifically remember the parties but he did indicate that the testimony of the employee's supervisor was inconsistent and unreliable. The ALJ pointed out that the supervisor initially stated that the employee was warned about her attendance on May 15. The supervisor then agreed that the warning was for performance, and later did not realize that he testified earlier that the warning was solely for attendance. The commission agrees. However, even based on the employee's account of her actions on May 15, the commission concludes that the employee was insubordinate and was or should have been aware that she would probably be discharged for leaving. The employee did not have valid reasons for leaving and in addition had been told several times by the assistant supervisor that she should not leave. The employee had been warned about her attendance, and in fact had attendance points beyond what would normally result in discharge. As such, the employee should have realized that accumulating any additional points could result in discharge, even if she was not discharged for her insubordinate behavior.

NOTE:     Repayment instructions will be mailed after this decision becomes final. The department will withhold benefits due     for future weeks of unemployment in order to offset overpayment of U.I. and other special benefit programs that are due to this state, another state or to the federal government.

Contact the Unemployment Insurance Division, Collections Unit, P. O. Box 7888, Madison, WI 53707, to establish an agreement to repay the overpayment.



 

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uploaded 2007/11/15