STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)
WENDY L RATHKE, Employe
NEW BERLIN PLASTICS INC, Employer
UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98601636MW
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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.
DECISION
The decision of the administrative law judge is affirmed. Accordingly, the employe is eligible for benefits beginning in week 6 of 1998, if otherwise qualified.
Dated and mailed: August 19, 1998
rathkwe.usd : 105 : 6 MC 686 MC 665.12
/s/ David B. Falstad, Chairman
/s/ James A. Rutkowski, Commissioner
MEMORANDUM OPINION
The commission has affirmed the appeal tribunal decision in this case, because it agrees with the administrative law judge's conclusion of no misconduct. Misconduct for unemployment insurance purposes is the intentional and substantial disregard by an employe of standards an employer reasonably may expect of its employes. The administrative law judge found credible the employe's assertions that she thought she was allergic to the sprays in question; nothing indicates to the commission that this assessment by the administrative law judge was erroneous, so the commission will not disturb it. At this point, though, the employe lacks the necessary intent to disregard the employer's interests, so the finding of no misconduct is correct.
The dissent finds intent to disregard the employer's interests in the employe's failure to have told the acting supervisor about her allergy to some of the sprays. The dissent misinterprets the record. The acting supervisor asked the employe to run the press. Only after the employe went over to the press and it was time to begin working on it, did she discover that there were sprays involved she thought she was allergic to. The record also indicates that the employe previously had informed the employer of her allergies to the employer's sprays. Again, though, this is a question of intent. The employe believed she was allergic to the sprays and that she could operate the machine with only minimal use thereof. It was a rush situation, the employe had just been assigned to the press in question, and the acting supervisor was not immediately present. Given these circumstances, it goes too far to suggest that the employe's failure was the intentional disregard of the employer's interests which is misconduct for unemployment insurance purposes.
The dissent also argues that the employe committed misconduct by not reporting injuries in a timely fashion. The employe's testimony was that, with regard to her elbows, they simply gradually became sore, that there was no accident to report. The dissent also ignores the employe's credible testimony to the effect that her supervisor would be dismissive when the employe would report pain she experienced while performing her work duties. The supervisor would indicate that she did not know what else the employer could do for the employe. All of these factors lead to the administrative law judge's conclusion of no misconduct.
PAMELA I. ANDERSON, COMMISSIONER, (Dissenting):
I am unable to agree with the result reached by the majority herein and I dissent. I believe that the employe showed a disregard of standards of behavior which the employer has the right to expect of his employe. She did not report all her injuries in a timely fashion. The employer has a right to know about injuries especially for workers compensation purposes.
She did not tell the employer that she was allergic to the spray and was going to try to run the machine without using the spray. The employer had accommodated her in the past so she should have revealed her problem with using the spray. If she had told the employer she might have discovered that she was not allergic to the new spray. The employe had no reason to believe that the acting supervisor would not have accommodated her when she was given the assignment. She testified that "I didn't tell Katie because you can't walk around." The problem with that is that she also testified that "The acting supervisor, Katie, came over and asked me to run the press." She said she turned on the light when she needed help. She could have turned on the light when she knew she had to use the spray.
For these reasons, I would reverse and find misconduct connected with her employment.
Pamela I. Anderson, Commissioner
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