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

MARK E. BURT, Employee

APPLETON ELECTRIC LLC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06604156MW


The department's initial determination dated June 10, 2006, ruled that the employee's discharge was not for misconduct connected with his employment, and allowed benefits. The employee was paid $4305 in unemployment benefits following the initial determination. The employer requested a hearing. After hearing, the appeal tribunal reversed the initial determination. In a decision dated August 2, 2006, the appeal tribunal ruled that the employee's discharge was for misconduct connected with his employment. It determined that the employee was required to repay $4305 to the Unemployment reserve Fund. The employee filed a timely petition for commission review. In its decision dated September 29, 2006, the commission affirmed the appeal tribunal decision.

By letter dated September 14, 2007, the employee wrote to the commission seeking reconsideration. He noted that the department was pursuing levy proceedings to collect the overpayment, but that he had been reinstated following his discharge, and the discharge had been removed from his record. The commission asked for documentation of the reinstatement. After the employee provided such documentation, the commission, in an Order dated November 21, 2007, and pursuant to section 108.09(6)(c) of the statutes, set aside its decision of September 29, 2006, and remanded the matter to the Milwaukee Hearing Office for further hearing on behalf of the commission, in order to make the grievance resolution letter dated August 29, 2006, an exhibit as part of the evidence of record, and to allow the employee and employer to testify regarding the grievance and its resoltuion.

Pursuant to the commission's remand, further hearing was held on December 10, 2007. Only the employee appeared and gave testimony. The grievance resolution letter was marked and received as "Exhibit 5." (This should have been Exhibit 6, as five exhibits had already been received at the original hearing. The commission believes that the administrative law judge inadvertently failed to note the prior Exhibit 5, the June 2003 - June 2006 Collective Bargaining Agreement, because it is in a smaller format than Exhibits 1 through 4 and may have been overlooked in the file).

Based on the foregoing hearings, the commission makes the following

FINDINGS OF FACT AND CONCLUSIONS OF LAW


The employee worked approximately four years as an iron pourer for the employer, a foundry which pours electrical outlets and connectors. He was discharged on April 25, 2006 (week 17) after his supervisor saw him urinating into a pile of sand from his workstation platform. The employee grieved the discharge. By resolution dated August 29, 2006, the employer agreed to reinstate the employee without loss of seniority, and to treat his time off between the discharge and the reinstatement as a disciplinary suspension without pay.

Where the facts indicate that a discharge has been rescinded and the employer has treated the employee's period of unemployment as a period of disciplinary suspension, the employee's eligibility for benefits is properly analyzed pursuant to Wis. Stat. sec. 108.04(6). Zahn v. Land O Lakes Inc., Hearing No. 04200322WU (LIRC June 29, 2004), Hall v. Milwaukee Transport Services, Inc., UI Hearing No. 05603339MW (LIRC Jan. 11, 1996), aff'd sub nom. Milwaukee Transport Services, Inc., v. LIRC and Cornelius Hall, Case No. 96 CV 000989 (Milw. Co. Cir. Ct., Aug. 21, 1996). Section 108.04(6) provides that an employee whose work is suspended by an employing unit for good cause connected with the employee's work is ineligible to receive benefits until 3 weeks have elapsed since the end of the week in which the suspension occurs or until the suspension is terminated, whichever occurs first. Thus, the issue is whether the employee's discharge was for good cause connected with his work.

The employee urinated from his workstation platform into sand on the floor below because he was concerned with being disciplined if he stopped production on his machine in order to go to the restroom, and he did not think it was feasible to request his supervisor or a co-worker to fill in for him, either because of their unavailability or because they were busy with their own jobs. He did not believe he could be observed when urinating, and he believed the sand into which he urinated could be cleaned up and disposed of in the normal course of operations. He had missed his break and the normal two hour rotation and did not think he could go any longer without urinating.

The employer has a rule against creating and contributing to unsanitary conditions. While the employer prefers that a machine operator obtain a replacement rather than stop production to go to the bathroom, the employee could have put his machine on "manual" for the few minutes that would have been required for him to go to the bathroom instead of urinating onto the floor of the plant.

The commission concludes that the employer suspended the employee for good cause connected with his work, within the meaning of Wis. Stat. sec. 108.04(6)and that he is therefore ineligible for benefits until 3 weeks have elapsed since the end of the week in which the suspension occurred. .

The commission further finds that the employee was paid unemployment benefits in the amount of $1236, for weeks 17 of 2006 through week 20 of 2006, for which he was not eligible and to which he was not entitled, within the meaning of Wis. Stat. sec. 108.03(1), and that, pursuant to Wis. Stat. sec. 108.22(8)(a), he is required to repay such sum to the Unemployment Reserve Fund.

The commission finally finds that recovery of the overpayment shall not be waived, within the meaning of Wis. Stat. sec. 108.22(8)(c), because the overpayment was not the result of department error, as defined in Wis. Stat. sec. 108.02(10)(e).

DECISION

The decision of the administrative law judge is modified to conform with the foregoing and, as modified, is affirmed. Accordingly, the employe is ineligible for benefits in week 17 through 20 of 2006. He is required to repay the sum of $1236 to the Unemployment Reserve Fund.

Dated and mailed December 19, 2007
document5 : 180 :  MC 676

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

Ann L. Crump, Commissioner

 

cc: Attorney Theresa E. Essig


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