NATHANIEL J ANDERSON, Employee

J H LARSON ELECTRICAL CO, 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 about three and one half years as a warehouse associate for the employer, a plumbing and heating supplies distribution business. His last day of work was December 10, 2008 (week 50), when he was discharged.

In the spring of 2008, the employee's work hours were changed to a later start and finish time. This change was made in response to rearrangement caused by layoff of some of the employer's workforce. The employee was upset by this since it reduced the amount of time that he would be able to spend with his young child. He was unfriendly toward co-workers and expressed hostile statements regarding the employer's management as a result. In May of 2008, he was given a disciplinary suspension for his reaction to the schedule change. He was put on notice then that he was to avoid display of a negative attitude and was to show respect towards the employer's management in the future. If there were no changes, he could anticipate further discipline, including discharge.

In October of 2008, the employee was again given a change in work schedule, backing up still further his start and stop time. His reaction was similar to what had occurred before. At that time, he became noncommunicative except for strictly work-related activities. In response, the employer again placed him on a disciplinary suspension and the expectations for how he was to respond in the future were repeated. Following the disciplinary suspension he met with the employer's warehouse manager. At that time, he inquired as to where in the employee handbook it imposed a requirement that he be sociable with co-workers. He had also expressed the views that what the employer saw they would get until he found a new job. Following this meeting, the employee was discharged based on his expressed unwillingness to change his attitude toward work.

The issue to be decided is whether the employer discharged the employee for misconduct connected with his work for the employer.

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 employer alleged that the employee's attitude affected productivity. This is an assertion without any supporting evidence. The employer did not present any specific example of the employee's interaction with a customer during which the employee demonstrated a negative attitude. The only specific incident raised by the employer is that when people said good morning to the employee he would reply "What's good about it?" The employer testified that unless the employee was asked a specific question he would not interact with people and that this was disruptive. The employer does not explain how or why it was disruptive. There was no evidence in this case that the employee failed to perform his work. The employer did not establish that the employee's attitude decreased the productivity of other workers.

The commission therefore finds that in week 50 of 2008, the employee was discharged from his employment but 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 50 of 2008, if he is otherwise qualified.

Dated and mailed March 26, 2009
anderna . urr : 132 : 1 : MC 666.01

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

The commission did not consult with the ALJ regarding witness credibility and demeanor. The commission's reversal is not based on the credibility of the witnesses. The commission has reached a different legal conclusion when applying the law to the facts found by the ALJ.

cc: J H Larson Electrical Co. (Eau Claire, Wisconsin)

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uploaded 2009/04/03