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

CLARENCE L INGALLS JR, Employee

PROPPANT SPECIALISTS LLC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 09401665AP


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 less than one year as a laborer for the employer, an industrial sand company. He was discharged on April 15, 2009 (week 16).

The issue is whether the actions for which the employee was discharged constitute misconduct connected with his employment.

The employee was not a supervisor or lead worker. After he was transferred to the second shift, he was assigned to train Mike, a new worker.

When Mike started work, the employee told him that he looked more like a "Buford" than a Mike, and the employee started calling him that. Mike brought in a labelmaker and made labels for every worker's locker. The label Mike created for his own locker said "Buford." Mike laughed about being called Buford.

According to the employee's unrebutted testimony, Mike had many performance deficiencies, including some implicating workplace safety; and the employee reported these deficiencies to management but no corrective action was taken.

The employee became very frustrated with Mike's lack of progress and lack of proficiency, and repeatedly called him a "dumb Polack" and a "dumb ass." Mike was of Polish descent.

The record does not show that Mike ever indicated to the employee he found this objectionable. The employee's testimony that Mike fully participated in joking around at others' expense was unrebutted.

About six months before he was discharged, the employee, at the assistant manager's suggestion, put an adult diaper in Mike's lunchbox. The employee was not individually counseled, or disciplined, for this action. The employer held a meeting with the workers, and indicated that "everyone was to stay out of everyone's personal property," but did not discuss harassment.

The final incident occurred on or before April 15, 2009. Mike complained to the employer that someone had placed an adult diaper in his locker. The record shows that a coworker named Dave, not the employee, put the diaper in Mike's locker, and that the employer was aware of this prior to discharging the employee.

Mike complained about the final diaper incident to the employer. As a part of this complaint, Mike also indicated that the employee had repeatedly called him a "dumb Polack" and a "dumb ass," and had called him Buford rather than Mike.

The employer's work rules "strictly prohibit" unwelcome verbal conduct based upon ethnic background, and provide that any violation of this prohibition "will subject an employee to disciplinary action, up to and including immediate termination."

Since the record shows, and the employer concedes, that the employee was not responsible for the final diaper incident, what remains at issue are the employee's statements to Mike, including his use of the name Buford.

The conduct must have been unwelcome in order for it to violate the employer's work rule. Because the record shows that joking and making fun of each other was common in the workplace, and Mike participated in it, the record would have to show that Mike took some action to alert the employee that he objected to his statements. Here, the record does not show that Mike took such action, and, in fact, it shows instead that he fully participated in joking at others' expense in the workplace, and put the name "Buford" on his own locker. The record also does not show that Mike complained to management about the employee's statements until he filed the complaint triggered by the final incident, i.e., after the conduct at issue had been going on for at least six months. Apparently, when Mike complained about the first diaper incident six months before the employee's discharge, he did not complain about statements the employee had made to him or his use of the name Buford. The plant manager concedes in his testimony that "Mike is a very quiet person and I don't believe he let his feelings about this show until the end."

The commission fully recognizes the negative work environment the use of ethnic pejoratives may engender for individual workers as well as for the work group as a whole. However, under the circumstances present here, the use by a coworker of such pejoratives simply does not rise to the level of misconduct when the target, by his own actions, freely participates in workplace teasing and joking at others' expense, and not only does not state or even imply an objection, but even begins to refer to himself by a name about which he later complains to the employer.

The record here does not support a conclusion of misconduct because it does not show that it should have been obvious to the employee, without warning, that his statements to Mike, or his use of the name Buford, were unwelcome, and violated the employer's work rule.

The commission therefore finds that, in week 16 of 2009, the employee did not voluntarily terminate his employment within the meaning of Wis. Stat. § 108.04(7), but was discharged and his discharge was not for misconduct 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 16 of 2009, if otherwise qualified.

Dated and mailed September 30, 2009
ingalcl . urr : 115 : 1   MC 699.05

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

NOTE: The commission did not confer with the administrative law judge before reversing her decision, because it did not overturn any of her credibility determinations, or, in fact, any of her material findings, but instead reversed her decision as a matter of law.

cc: Linda Learned

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uploaded 2009/10/23