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

DAVID L BAGGESEN, Employee

IDG USA LLC , Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 09609596RC


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 and after consultation with the ALJ, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked for three years as a buyer for the employer, a systems integrator. He performed services in a factory setting where coarse language was in ample supply. His last day of work, and date of discharge, was June 15, 2009 (week 25).

On February 16, 2009, the employee received a written warning and one day suspension for intimidating a co-worker. He was told that another incident could result in his discharge.

On Friday, June 12, 2009, the employee's immediate supervisor told the employee that a customer was seeking additional information regarding a part that the employer was supplying. The employee became angry and said, "I already sent them everything I fucking had" and "What the fuck do they want?" He also said, "Fuck them" a number of times referring to the customer. The supervisor told the employee that if he did not calm down he could go home for the rest of the day and return on Monday. The employee did calm down and worked the rest of the day.

The supervisor conceded that his staff was overworked and the project was very intense in terms of the level of information needed. He also admitted that he could have teased the employee about the request both as an attempt to add "levity," an inside joke, mocking the customer. He added that he understood his workers' frustrations and, therefore, allowed the workers to vent in his office. He distinguished the employee's behavior as not being in his office and as completely unacceptable. While the supervisor was uncertain whether the employee would respond to the customer's request and assigned another worker to handle it, the employee testified that he attempted to provide the customer with more information by contacting the parts vendor.

On Monday, June 15, 2009, the employee was discharged for insubordination.

Section 108.04(5) of the Wisconsin Statutes denies unemployment insurance benefits to a worker who is discharged for misconduct connected with the employment. Thus, 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

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.

"With respect to isolated argumentative or insubordinate comments by workers to supervisors, the commission does not automatically find misconduct but analyzes the severity of the comments and the context in which they are made." Scheidt v. Leafguard Of Wisconsin Inc., UI Dec. Hearing No. 04606363WK (LIRC, Nov. 24, 2004). The commission distinguishes between the situation in which obscene or profane language is simply used versus the situation in which such language is specifically and personally directed at someone, the later considered severe; the commission has also noted as relevant the question of whether there is normally a certain degree of coarse language used in the particular workplace. See Dieckman v. Myron L. Olson Master Cheesemaker LLC, UI Dec. Hearing No. 06004282JV (LIRC February 23, 2007)(citing Sucevich v. Bradley Exterminating, UI Dec. Hearing No. 90606142 MW (LIRC, June 21, 1991) and Benites v. Amcast Automotive, UI Dec. Hearing No. 00401782AP (LIRC, March 27, 1998)).

With respect insubordination, in Roeben v. Kraft Foods Inc., UI Dec. Hearing No. 97005891MD (LIRC March 19, 1998), misconduct was found where, after an initial profane outburst, the employee was directed to calm down but engaged in another profane outburst against the supervisor and even another worker who merely responded to the supervisor's suggestion.

In this case, the employee exhibited poor behavior in response to the supervisor's request. However, the employee's frustrations were directed at the absent customer, not his supervisor. Further, once the supervisor directed him to calm down, he did and he attempted to seek the information the customer desired. Under these circumstances, and given nature of the language in the workplace, the commission finds that the employee's initial response to the customer request did not evince a willful and intentional disregard of the employer's interests.

The commission therefore finds that in week 25 of 2009, the employee was discharged but his discharge was not for misconduct connected with the employment 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 25 of 2009, if otherwise qualified.

Dated and mailed April 23, 2010
baggeda : 150 : MC 640.15

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

NOTE: The commission conferred with the administrative law judge about witness credibility and demeanor. The commission's reversal is reversal was not based upon a differing view as to the credibility of witnesses, but instead upon a differing conclusion as to what the hearing record in fact established and upon a differing interpretation of the relevant law.


cc: Attorney Bryn Heiman
IDG USA LLC, Westchester OH



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