JOSEPH R MUNES, Employee

KRAFT PIZZA OF LITTLE CHUTE, 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 the employer, a pizza production business, for about two years as an equipment operator on third shift. His last day of work was August 15, 2008 (week 33). He was discharged on August 18, 2008 (week 34).

The employer's rules provide for immediate discharge for "fighting, threatening, coercing, interfering with, or harassing fellow employees."

On August 14, 2008, the employee was joking around with a female co-worker. The employee and the co-worker were poking and pushing each other around when, without warning, the employee punched her in the stomach with a closed fist. The co-worker exclaimed, "What the hell?" to which the employee responded, "You're not pregnant, so what's it hurting?" The co-worker told the employee to get away from her and that she did not want to see him. She did not report his conduct to the employer.

A few hours later the employee came up behind the same co-worker and slapped her in the face with a handful of flour. The co-worker then reported the employee's conduct to a supervisor. In the early morning of August 15, the employer sent the employee home pending a determination about his status. On August 18 the employee received notification that he was discharged.

The issue to be decided is whether the employee's discharge was due to misconduct connected with his employment.

In Boynton Cab v. Neubeck, 237 Wis. 249, 296 N.W. 636 (1941), the leading case with respect to the meaning of the term "misconduct" as applied to unemployment compensation 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 employe, 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 employe'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 testified that he and the co-worker were joking around and that he did not intend to hurt her. He denied slapping the co-worker in the face, and stated that he just rubbed flour in her face. The employee argued that his actions did not evince misconduct. The commission disagrees. While the first incident might be explained by the fact that the employee and his co-worker were joking around and things got out of hand, the employee had no justification for continuing the conduct later in the day, after his co-worker had expressed her displeasure and told him to leave her alone. Whether the employee slapped the co-worker, or merely rubbed flour in her face, the fact remains that he engaged in an inappropriate and unwelcome course of conduct which he should have known was impermissible in the workplace.

The commission, therefore, finds that in week 34 of 2008, the employee was discharged for misconduct connected with his employment, within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employee was paid benefits in weeks 34 through 36 of 2008 in the total amount of $1,065, for which he was not eligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03(1). Pursuant to Wis. Stat. § 108.22(8)(a), he is required to repay such sum to the Unemployment Reserve Fund.

The commission further finds that waiver of benefit recovery is not required under Wis. Stat. § 108.22(8)(c), because although the overpayment did not result from the fault of the employee as provided in Wis. Stat. § 108.04(13)(f), the overpayment was not the result of a department error. See Wis. Stat. § 108.22(8)(c)2.

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 34 of 2008 and until seven weeks have elapsed since the end of the week of discharge and he has earned wages in covered employment performed after the week of discharge equaling at least 14 times his weekly benefit rate which would have been paid had the discharge not occurred. He is required to repay the sum of $1,065 to the Unemployment Reserve Fund. The initial benefit computation (UCB-700) issued on August 25, 2008 is set aside. If benefits become payable based on work performed in other covered employment a new computation will be issued as to those benefit rights.

Dated and mailed January 20, 2009
munesjo . urr : 164 : 6 MC 656

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

NOTE: The commission conferred with the administrative law judge about her impressions of witness credibility and demeanor. The administrative law judge indicated that she believed the employee's co-worker exaggerated the final incident and that it was less of a hard slap and more like a "pie in the face." However, under either scenario the commission finds misconduct.

Repayment instructions will be mailed after this decision becomes final. The department will withhold benefits due for future weeks of unemployment in order to off set 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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uploaded 2009/02/03