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

JEFFREY PERLEWITZ, Employee

LAPHAM HICKEY STEEL CORP, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 08401142AP


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 as a laborer in the fabrication department during his approximate eight months of employment with the employer, a steel fabrication business. The employer's policies, of which he received a copy upon hire, provided for disciplinary action up to and including discharge for physical or verbal abuse, or "any pattern of behavior that creates or is intended to create a hostile, offensive, or intimidating work environment."

On April 7, 2008 (week 15), the employee's supervisor was unable to find him until a co-worker provided information that the employee was outside and that he had a habit of leaving the work area for about 30-minute periods and that no one knew where he was on those occasions. The human resource manager verified that the employee was still on the time clock when he could not be found, although it was required that workers were to punch out when on breaks. The employee had gone to his car to retrieve his cell phone and stayed for about 20 minutes to make a phone call. The supervisor later reprimanded him for leaving the work area while not on a break and while still on the clock. The employee surmised who had informed the supervisor of his habit of leaving and upon his return to the work area he called his co-worker "fat-boy," "dumb-ass," and other derogatory names and told him that he would get back at him for this one. The co-worker reported the employee's comments to management and the employee was immediately discharged.

The issue to be decided is whether the employee's actions, which led to the discharge by the employer, constitute misconduct connected with the employment.

The statutes generally provide that if an employee is discharged from employment with an employer due to actions that constitute misconduct connected with the employment, the employee will not be eligible for any unemployment benefits based on wages earned from work prior to the discharge for that employer and will only be eligible for benefits based on wages earned from work for other employers when at least seven weeks have elapsed after the end of the week of discharge and the employee has earned wages in covered employment after the discharge of at least 14 times the employee's applicable weekly benefit rate.

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."

There was no disagreement between the parties regarding the above facts. It was the employee's position that he should have been given a warning regarding his name-calling and comment that he would get back at his co-worker before being discharged for this reason. He also asserted that his "threat" to the co-worker was intended only to mean that he would report any of his coworker's future misbehavior on the job in retaliation. He argued that the employer had misinterpreted his comment as a threat of violence. The commission agrees. The employee used extremely poor judgment in calling his co-worker names. The employee had no prior warnings for this kind of behavior, and was upset by what he perceived to be his co-worker's tattling. The employee testified that other workers called the co-worker the same names while joking around with him, though the employee did admit that he was not joking. While the employee's actions are not to be condoned, the commission is satisfied that this was an isolated instance of poor judgment on his part. With respect to the "threat" the employee never mentioned physical harm to the co-worker and the most reasonable interpretation of his comment, in the context in which it was uttered, is that he meant he was going to watch the co-worker until the co-worker did something blameworthy and report the co-worker's behavior to a supervisor. Again, this shows extremely poor judgment on the part of the employee, but under these circumstances, and without a warning, the employee's comments did not amount to such a willful and substantial disregard of the employer's interests as to amount to misconduct connected with his work.

The commission therefore finds that in week 15 of 2008, the employee was discharged but not for misconduct connected with his work for the employer, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 15 of 2008, if otherwise qualified.

Dated and mailed June 30, 2008
perleje . urr : 145 : 1 MC 669

/s/ James T. Flynn, Chairperson

Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

The commission did not discuss witness credibility and demeanor with the ALJ because, as noted by the ALJ in her decision, the facts in this case were basically undisputed. The commission reversed the ALJ's decision because it reached a different legal conclusion when it applied the law to the facts found by the ALJ.

The commission did not address the issue of the employer's failure to provide correct and complete information requested by the department during the fact finding investigation. Because the commission's decision allows benefits, that issue has become moot.


 

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