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

CHERYL L SUKUP, Employee

FT MFG CORP, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 09603182WB


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 remanded this matter for further hearing which was held on December 10, 2009.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJs. Based on its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked for about one and one-half years as a machine operator for the employer, a manufacturer. The employee's last day of work was on February 9, 2009 (week 7).

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.

On her last day of work one of the employee's co-workers repeatedly advised the employee that the employee had the wrong job ticket associated with some parts. The employee became irritated and stated that she was going to quit the "fucking" job. The employee had a part in her hand at the time. The employee wound up and threw the part about seventy five feet across the shipping department. The employer discharged the employee for engaging in an unsafe act in a heavily traveled area.

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 employee had no excuse for her conduct. The employee in fact refused to acknowledge her conduct. The employee's actions in throwing a part across a heavily traveled area placed the safety of others at risk. The employee's actions were contrary to standards of behavior the employer had a right to expect of the employee.

The commission therefore finds that in week 7 of 2009 the employee was discharged from her employment and for misconduct connected with her work within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employee was paid benefits in the amount of $5,658.00 for weeks 7 through 52 of 2009, and week 1 of 2010, for which the employee was not eligible and to which the employee was not entitled, within the meaning of Wis. Stat. § 108.03(1).

The final issues are whether the employee must repay erroneously paid benefits and whether the employers account is charged for those benefits. 

The employee and the employer failed to respond to the departments request for information resulting in the payment of benefits.  The employee and employer were both initially at fault for the erroneous payment of benefits.  The employer could not explain why its representative failed to respond to the departments request for information.  The employee maintained that she did not receive a message from the department.  The commission does not find her testimony credible, in particular since the employee lied under oath at the original hearing when she claimed she did not throw the part.  That same lie led to the appeal tribunal decision allowing benefits and therefore the employee continued to be at fault for the erroneous payment of benefits.  Where there is joint employee and employer fault, the employee must repay benefits and the employers account remains charged for those benefits.  The employee must repay all benefits received.  The employers account remains charged for benefits paid before the appeal tribunal decision was issued.  The payment of benefits after the appeal tribunal decision was issued was due to employee fault.  Therefore, the employee is required to repay those benefits but the employers account is not charged for those benefits. 

The commission further finds that the employee was erroneously paid benefits due to employee fault, within the meaning of Wis. Stat.  108.04(13)(f), and must repay $5,658.00 in  benefits erroneously received.

The commission further finds that the employee was erroneously paid benefits in the amount of $1,949.00, due to employee and employer fault, within the meaning of Wis. Stat. 108.04(13)(f), and as a result the employers account remains charged for those benefits.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 7 of 2009, and until seven weeks elapse since the end of the week of discharge and the employee has earned wages in covered employment equaling at least 14 times the weekly benefit rate which would have been paid had the discharge not occurred. The employee is required to repay the sum of $5,658.00 to the Unemployment Reserve Fund.

For purposes of computing benefit entitlement: Base period wages from work for the employer prior to the discharge shall be excluded from any computation of maximum benefit amount for this or any later claim. If the employee was also paid base period wages from work by other covered employers, the excluded wages shall be used to determine benefit eligibility.  Benefits in the amount of $1,949.00 remain charged to the employer's account.  Benefits in the amount of $3,709.00 will be charged to the balancing account. 

Dated and mailed January 8, 2010 modified and mailed on February 3, 2020
sukupch : 132 : 5 MC 675

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner



MEMORANDUM OPINION

The commission did not consult with the ALJ who presided at the original hearing regarding his impressions of witness credibility and demeanor. The commission's reversal is based on testimony presented at the remand hearing that was not available to the ALJ when he made his decision. The employee's written statement is an admission to throwing the part. The employee's explanation as to why she wrote in her own Equal Rights complaint that she threw the part is unpersuasive. The employee has provided no medical evidence establishing a link between her psychological condition(s) and her conduct on February 9. The employee has provided no motive for her co-worker to lie about what occurred.

 

NOTE:  The employee requests reconsideration of the commissions decision.  The employees request is based on evidence she did not present at either the original hearing or the remand hearing.  Particularly since the commission remanded this matter for further hearing, the employee had ample opportunity to present her case and the commission will not reconsider its finding of misconduct.

The employee further notes in her reconsideration request that the ALJ stated that the employer failed to respond to the departments request for information.  The employee is correct.  In fact, at the remand hearing the employer acknowledged such failure and did not present any argument that it had good cause for failing to respond to the departments request.  However, the UI Claim Investigation-Claimant Statement, Exhibit 9, indicates that the adjudicator left a message for the employee.  The employee did not respond to that message.  The employee maintained at the hearing that she did not get the call.  The employee is not credible.

cc: David Tomczek, President


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uploaded 2010/01/26  modifications uploaded 2010/02/11