DAVID M WOOD, Employee

APPLETON SUPPLY CO INC, 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 over 15 years as a slitter operator, production worker and material handler for the employer, a manufacturer of metal products for home construction. His last day of work was on February 14, 2008 (week 7).

In November of 2007, the employer's president had a meeting with the employees. After the meeting, the employee asked the customer service manager if the employer's president was blowing smoke up the employees' asses. He made the comment in front of a vendor. He was warned that his statement, especially in front of a vendor, was unacceptable.

In December of 2007, the employee received his performance appraisal. The appraisal reminded him that he had to communicate in a respectful manner with others.

The employee was the only material handler on February 14. As the only material handler, he is to stay in contact at all times. On February 14, the production manager attempted to contact the employee on numerous occasions, but was unsuccessful. Around 12:30 p.m., the employee entered an office where the production manager and the production supervisor were working. The production manager commented that he had been trying to get hold of the employee and that the employee needed to get material to the production line. The employee told the production manager not to worry and that he had until 3:30 to deliver the material. The production supervisor stated that the lines needed the material to prevent a shutdown. The production manager also stated that the material was needed to keep the line running. The employee told the production manger to stop his whining. The production supervisor stated that the comment was inappropriate. A heated discussion ensued. The employee became upset and as he was walking out stated that they should not worry and that he would get the damn material. Although the production supervisor instructed him to come here, the employee continued out of the office.

Later that day, the employee was informed that he was discharged for insubordination.

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.

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."

It was the employee's position that his discharge was not for misconduct. The commission agrees. He argued that he made the comment in November because sometimes he does not think before he speaks and that at the meeting the president merely repeated statements made at prior meetings. He further argued that when he first entered the office on February 14, that he thought that the production manager was joking with him and therefore, was merely joking back. He also argued that he did not hear the production supervisor tell him to come back.

In this case, the employee's actions showed poor judgment. The employee was warned about his comments in front of the vendor. With respect to the second incident, the employee initially thought the production manager was joking about the matter. The employee, once he realized that the production manager was not joking, should have stopped arguing about the matter and gone to get the material. While the employee's comments were ill advised, the employee had worked for the employer for a long period of time and apart from the November 2007 incident, the employee had not had any similar incidents in the last year of his employment. While the employer may have made a valid business decision when it discharged the employee, his actions 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 7 of 2008, the employee was discharged but that his discharge was 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 7 of 2008, if otherwise qualified.

Dated and mailed July 3, 2008
woodda . urr : 145 : 1 MC 668 : MC 669

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

Ann L. Crump, Commissioner

The commission did not discuss witness credibility and demeanor with the ALJ prior to reversing her decision. The commission did not reverse based on a different impression of witness credibility and notes that the facts were for the most part not in dispute. 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.

cc: Appleton Supply Co., Inc. (Appleton, Wisconsin)

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uploaded 2008/07/18