RUSSELL S LE SAGE, Employee

RIISER WAUSAU ENERGY, Employer

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:

The employee worked for a little over 10 years as a maintenance worker for the employer, a convenience store and petroleum distribution business. His last day of work was January 25, 2008 (week 4), when he was discharged.

On the employee's last day of work, the employee had a meeting with the employer's vice president of retail operations. The meeting concerned a wage raise that the employee considered had been promised to him but not yet granted. Because of circumstances in the employee's personal life, it was urgent that he receive this raise. During the meeting, the employer's vice president told him that he would not receive it. In response, the employee uttered the expletive "Fuck you" and left the vice president's office. Thereafter, the employer discharged him based on its conclusion that he had been insubordinate.

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

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 was warranted in being disturbed over his not receiving a wage raise. Such a wage raise would have been granted to him earlier but for a request that he had made that it be delayed. He had made repeated requests thereafter in which he was told that the wage would be granted but the employee had not acted on those representations. Additionally, the employee's need for additional funds was truly urgent. The employee's response to the employer's statement was inappropriate. However the employee was in a financial bind and was seeking a raise that had been promised to him. The employer did not demonstrate that the employee had received any prior discipline for similar behavior. The employer made a valid business decision to discharge the employee. The commission concludes, however, that the employee's conduct amounted to an isolated instance of unsatisfactory behavior and not a willful and substantial disregard of the employer's interests.

The commission therefore finds that in week 4 of 2008, the employer discharged the employee but not for misconduct connected with his work within the meaning of Wis. Stat. § 108.04(5).

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 4 of 2008, if he is otherwise qualified.

Dated and mailed May 16, 2008
lesagru . urr : 132 : 1 :   MC 640.05  MC 640.15

James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

NOTE: The commission did not consult with the ALJ who presided at the hearing regarding witness credibility and demeanor. The commission has adopted the ALJ's factual findings but reached a different legal conclusion based on those facts than was reached by the ALJ.

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uploaded 2008/05/27