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

GARY A. KRUSE, Employee

PATRICK CUDAHY INC., Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 08602480MW


An Appeal Tribunal Decision dated May 8, 2008, affirmed the department's initial determination and found that the employee was discharged in week 12 of 2008, the week ending March 22nd, for misconduct connected with his employment. Benefits were denied. The employee filed a timely petition for review by the Labor and Industry Review Commission on May 20, 2008. Thereafter, the employee sent correspondence to the commission received on June 2, 2008, contending that his discharge of March 17, 2008, had been changed to a suspension, and that he would start work again on June 2, 2008.

By Order dated July 23, 2008, the commission remanded this matter to the Milwaukee Hearing Office to take additional testimony and evidence, including documentation of the change from a discharge to a suspension and its terms.

Hearing was held pursuant to the commission's remand Order on August 6, 2008.

The matter is now back before the commission on the employee's petition for commission review of the May 8, 2008 Appeal Tribunal Decision.

Based on the applicable records and evidence, the commission makes the following


FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked for approximately two years as a product shipment checker for the employer, an operator of a processed pork business. His last day of work was March 17, 2008 (week 12). He was discharged on the next day, March 18, based on charges of insubordination and failing to follow a supervisor's instructions. The employee grieved the discharge. In a grievance meeting on May 28, 2008, the employer decided to return the employee to work with all seniority but without back pay, and to consider the time off to have been a suspension without pay.

Where facts show that a discharge has been rescinded and the employer has treated the employee's period of unemployment as a period of disciplinary suspension, the employee's eligibility for benefits is properly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), "Disciplinary Suspension." Zahn v. Land O' Lakes Inc., Hearing No. 04200322WU (LIRC June 29, 2004). Hall v. Milwaukee Transport Services, Inc., v. LIRC and Cornelius Hall, 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) of the statutes 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 suspension was for good cause connected with his work.

On March 17, 2008 (week 12), the employee complained to his supervisor about the lack of a temperature gauge and the temperatures in which he was required to work. He became loud and confrontational with the supervisor and refused to lower his voice when requested to do so. He also refused to leave the premises when the supervisor first instructed him to leave, until a security person was summoned to escort him out of the building.

Good cause in the context of a disciplinary suspension is a lesser standard than that for misconduct , yet some blameworthy conduct on the part of the employee, which may include single, isolated acts of negligence or poor judgment, must be shown. See, e.g., Kaufman v. TLC, UI Hearing No. 99604166MW (LIRC Jan. 27, 2000). The employee's behavior here meets the "good cause" standard for disciplinary suspension. His conduct was disrespectful toward the supervisor and in violation of an employer rule requiring following instructions -- in this case for the employee to lower his voice and to leave for the day.

The commission therefore finds that, in week 12 of 2008, the employee's work was suspended by the employer for good cause connected with the employee's work, within the meaning of section 108.04(6) of the statutes.

DECISION

The decision of the administrative law judge is modified to conform with the foregoing findings and, as modified, is affirmed. Accordingly, the employee is ineligible for benefits in weeks 12 through 15 of 2008, the period from March 16 through April 12th. He is eligible thereafter if he is otherwise qualified.

Dated and mailed August 20, 2008
Krusega . urr : 180 : 9  MC 640.05   MC 676.2

James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner


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