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


PAUL H LUKAS, Employe

THE PROCTER/GAMBLE PAPER PRODUCTS CO, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98401561GB


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 the applicable law, records and evidence in this case, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked for approximately eighteen months as a technician for the employer, a paper products manufacturer. He was discharged on May 3, 1998 (week 19).

On December 10, 1997, the employe received a written warning for sleeping on the job. On February 27, 1998, he received a second warning and a one-day disciplinary layoff for his failure to follow proper safety procedures when clearing a jam from his machine.

The employe and a female co-worker (who was also a union steward) had an affair, which subsequently ended. From that time on, each had been making the working environment unpleasant for the other, as well as for the remaining members of their team. The two would argue and swear at one another on a regular basis. The employer's work rules forbid workers from "us[ing] abusive or threatening language" or "disturb[ing] or interfer[ing] with any other employee."

In early February, the employe approached his former supervisor to request a transfer from his current work team, which included the female co-worker with whom he had had an affair. He did not detail his reasons for requesting the transfer, but only stated that his request was "for personal reasons."

In late February, the female co-worker and another union representative approached management and complained that the employe was displaying inappropriate behavior toward his co- workers. They did not give management any specifics of the allegedly improper behavior, but asked that union representatives be allowed to try to work out a solution to the problem. On March 5, the employe was called into an "expectations meeting" with his supervisor, a union representative, and a human resources manager. The meeting generally addressed the importance of appropriate interpersonal behavior and proper techniques of anger management. The supervisor told the employe "I want you to know . . . that if you are not treating people appropriately, you will be fired, and I will be the one to do it . . . if you disregard the feedback, you will lose your job." After that meeting, the employe attended two company-sponsored anger management classes.

A list of internal job transfers was posted, and the employe discussed a possible transfer from his current team with his female co-worker on Saturday, April 25. At that time, the two agreed that he would apply for a transfer to be effective in June, so that his already scheduled days off would still be available to him prior to the transfer. When the employe arrived at work on the following day, the female co-worker became angry, and said, "I want you off this team - now - today."

The employe went into the break room, and met with another technician. The technician was concerned that the employe might lose his job if he did not apply for the transfer his female co- worker wanted. The employe told the technician that he should not have to be the one to change jobs, when the female co-worker was the cause of all the problems. The technician told him that the female co-worker reported the employe to management at the end of February. The technician believed that an investigation had been started as a result of the complaint. The employe became very angry and said, "If I lose my job because of her, I'll kill the fucking bitch." Later, when he had calmed down and started to leave the lunchroom, he turned and again addressed the technician. Both were laughing, and the employe said, "This place might look like a post office." The technician reported that she did not take the employe's comment seriously.

After the break, the technician was working on the line, and noted that the female co-worker was "keeping it really stirred up" and "badgering" the employe when he was not around. The technician told the female co-worker, "You'd better keep your mouth shut and leave him alone. He's really mad." The female co-worker asked the technician what she meant. The technician then reported what the employe had said.

The female co-worker immediately began informing the other team member of the employe's "threats." The employe heard about it approximately one hour later. He went to the technician and said, "Why the fuck did you tell her that?" The technician explained that she was not planning on telling the female co-worker, but did so in an attempt to "get her to stop all the talking."

At the end of his shift on Monday morning, April 27, the employe went to his new supervisor, and told him the details of his affair with the female co-worker. He explained that he wanted a transfer to another team "effective any time."

When the human resources manager heard the female co-worker's allegations of threatening language by the employe, he initiated an investigation. During the investigation the employe repeatedly denied stating that he would "kill the fucking bitch." The employe was suspended while the investigation was conducted. When the investigation was completed, the employe was informed that he was discharged, effective May 4, (week 19).

The issue is whether the employe's discharge was for misconduct connected with his 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."

The employe had been warned just two months prior to his discharge that he had to watch his interpersonal relations and anger. The employe admitted that when he stated that he would kill his co-worker he was angry. Whether the employe actually intended to kill his co-worker is not the issue. He verbalized a threat--a stated intent to cause bodily harm to another- whether he did so in jest or in seriousness. He ran the risk, by verbalizing such a threat to the technician, that the threat would be repeated. Particularly given the acrimonious relationship he had with the co-worker it was only reasonable that the co-worker would take the threat as serious. Finally, in these times making a comment that the workplace would "look like a post office" even when made jokingly would reasonably be expected to cause apprehension and fear in workers and management alike. The employe should expect to and must be taken seriously. The employe's language was both abusive and threatening.

The commission therefore finds that in week 19 of 1998, the employe was discharged by the employing unit, within the meaning of Wis. Stat. § 108.04(5), and that this discharge was for misconduct connected with the employe's work within the meaning of that section.

The commission further finds that the employe was paid benefits in the amount of $5329.00 for weeks 19 through 21, 24, and 27 through 41 of 1998, for which he was not eligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03(1).

The final issue to be decided is whether recovery of overpaid benefits must be waived.

Wisconsin Statute § 108.22(8)(c), provides that the department shall waive the recovery of overpaid benefits if the overpayment was the result of departmental error, and the overpayment did not result from the fault of the employe. Under Wis. Stat. § 108.02(10e)(a) and (b), department error is defined as an error made by the department in computing or paying benefits which results from a mathematical mistake, miscalculation, misapplication or misinterpretation of the law or mistake of evidentiary fact, or from misinformation provided to a claimant by the department, on which the claimant relied.

The overpayment in this case results from the commission's reversal of the appeal tribunal decision. Such reversal was not due to department error as defined in Wis. Stat. § 108.02(10e)(a) and (b). Rather, the commission has reached a different legal conclusion when applying the law to the facts found.

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 employe 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.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employe is ineligible for benefits beginning in week 19 of 1998, and until seven weeks elapse since the end of the week of discharge and the employe 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. He is required to repay the sum of $5329.00 to the Unemployment Reserve Fund. The initial benefit computation (UCB-700) issued on May 5, 1998, is set aside. If benefits become payable based on other employment, a new computation will be issued as to those benefit rights.

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 employe was also paid base period wages from work by other covered employers, the excluded wages shall be used to determine benefit eligibility. However, any benefits otherwise chargeable to a contribution employer's account shall be charged to the fund's balancing account.

Dated and mailed: January 11, 1999
lukaspa.urr : 132 : 6  MC 668

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission did discuss witness credibility and demeanor with the administrative law judge. The administrative law judge did not believe the employe's words constituted a threat. The commission does not find that to be dispositive of the misconduct issue. The employe ultimately admitted making the comment and that his statement that he would kill the co-worker was made in anger.

NOTE: Repayment instructions will be mailed after this decision becomes final. The department will withhold benefits due for future weeks of unemployment in order to offset overpayment of U.C. 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.

cc: JOHN MONROE
INDUSTRIAL RELATIONS MGR
PROCTER/GAMBLE PAPER PRODUCTS CO

ATTORNEY MARSHALL R BERKOFF
MICHAEL BEST AND FRIEDRICH


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