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


KENNETH D PALMS, Employe

H O BOSTROM CO INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98604788WK


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 the applicable law, records and evidence in this case, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked about 15 weeks as a welder for the employer, a manufacturer of seating. His last day of work was October 30, 1997 (week 44), when he was discharged.

The employe's supervisor, Mr. Lee, noticed at about 9:10 p.m. on September 25 that the employe was not at his work station. The employe's shift was to end at 10:30 p.m. and he had had a scheduled break at 7:30. Mr. Lee looked for the employe in the bathroom and walked around the shop checking each exit. At the last exit Mr. Lee saw the employe sitting outside on a pallet with another worker. The employe was smoking a cigarette. The employe said to Mr. Lee "What the fuck do you want?" Mr. Lee replied "What the fuck do you mean what do I want? Get back in there and get working. If you don't want to work punch out and go home." The employe argued all the way back to his welder about how the employer didn't pay him and how the employer mistreated him. The supervisor told the employe that the supervisor had been looking for the employe for 25 to 20 minutes. The employe told his supervisor that the supervisor was "full of shit."

The next day the employe told the company president that he had gone outside to stretch, due to a bad back, and had just lit a cigarette before Mr. Lee came out. The president told the employe to stretch inside.

On October 1, 1997, the employe received a warning for disorderly conduct for taking an unauthorized break, and being argumentative when asked to return to work. The warning noted that such behavior would not be tolerated.

On October 30, Ms. Pohl, corporate administrator, called the employe into a meeting because, based on her investigation of the September 25 incident, she believed that the employe had lied to the president. She told the employe that he had lied when he had discussed the incident with the president when he told the president that he was out stretching when he was actually smoking. The employe, started cursing at Ms. Pohl and told her that she was "full of shit." At one point during the meeting the employe became so argumentative that Ms. Pohl had to call the president into the meeting. The employe was discharged that same day by the president for disruptive behavior.

The initial issue to be decided is whether the employe was discharged for actions amounting to misconduct connected with his 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."

The employe was disrespectful to his supervisor when first confronted outside smoking during an unauthorized break. The employe was again disrespectful to his supervisor when returning to work when he told Mr. Lee that Mr. Lee was "full of shit." The employe was warned for his actions. One month later the employe repeated his disrespectful actions by telling Ms. Pohl that she was "full of shit." The commission finds that the employe's repeated coarse and disrespectful language to superiors evinced a wilful and substantial disregard of the employer's interests and of the standards of behavior the employer had a right to expect of the employe rising to the level of misconduct connected with his work.

The commission therefore finds that in week 44 of 1997 the employe was discharged from his employment and for misconduct connected with his work, within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employe was paid benefits in the amount of $89.00 for week 27 of 1998, for which he was not eligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03(1).

The final issue to be decided is whether recovery of overpaid benefits must be waived.

Wisconsin Statute § 108.22(8)(c), provides that the department shall waive the recovery of overpaid benefits if the overpayment was the result of departmental error, and the overpayment did not result from the fault of the employe. Under Wis. Stat. § 108.02(10e)(a) and (b), department error is defined as an error made by the department in computing or paying benefits which results from a mathematical mistake, miscalculation, misapplication or misinterpretation of the law or mistake of evidentiary fact, or from misinformation provided to a claimant by the department, on which the claimant relied.

The overpayment in this case results from the commission's reversal of the appeal tribunal decision. Such reversal was not due to department error as defined in Wis. Stat. § 108.02(10e)(a) and (b). Rather, the commission has reached a different legal conclusion when applying the law to the facts.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employe is ineligible for benefits beginning in week 44 of 1997, and until seven weeks elapse since the end of the week of discharge and the employe has earned wages in covered employment equaling at least 14 times the weekly benefit rate which would have been paid had the discharge not occurred. He is required to repay the sum of $89.00, to the Unemployment Reserve Fund. The initial benefit computation (UCB-700) issued on June 28, 1998, is set aside. If benefits become payable based on other employment, a new computation will be issued as to those benefit rights.

For purposes of computing benefit entitlement: Base period wages from work for the employer prior to the discharge shall be excluded from any computation of maximum benefit amount for this or any later claim. If the employe was also paid base period wages from work by other covered employers, the excluded wages shall be used to determine benefit eligibility. However, any benefits otherwise chargeable to a contribution employer's account shall be charged to the fund's balancing account.

Dated and mailed: November 9, 1998
palmske.urr : 132 : 1  MC 640.15

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission did discuss witness credibility and demeanor with the administrative law judge. The administrative law judge credited Ms. Pohl's testimony that the employe told her that she was "full of shit." The administrative law judge also believed that the employe asked his supervisor what the "fuck" the supervisor wanted when confronted outside on an unauthorized break. The employe had denied making either comment. The commission has reversed the appeal tribunal not based on a differing impression of witness credibility or demeanor but upon reaching a different legal conclusion when applying the law to the facts.

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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