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

RANDALL P CHARLES, Employee

WAYNE'S FOODS PLUS, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 11201967EC


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 employee is ineligible for benefits beginning in week 24 of 2011, and until seven weeks have elapsed since the end of the week of discharge and the employee has earned wages in covered employment performed after the week of discharge equaling at least 14 times the employee's weekly benefit rate which would have been paid had the discharge not occurred.

Dated and Mailed January 19, 2012

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

MEMORANDUM OPINION

The employee petitioned for commission review of the adverse appeal tribunal decision finding that he was discharged for misconduct connected with his employment.

In his petition, the employee argues that he should not have been discharged for asking for help on busy days when the meat manager was gone. However, the employee in this case was not discharged for simply asking for help when required to work alone. The employee was discharged for insubordination. On June 6, 2011, the employee demanded to discuss the issue of additional help, but the employer was not willing to discuss the matter with him at that time. The employee was adamant that he would not return to work until the matter was resolved to his satisfaction. The employee's refusal to follow the employer's reasonable directive to return to work was insubordinate. The commission has consistently found a discharge for misconduct in similar circumstances. See, e.g., Erickson v. LIRC and Create-Ability, Inc., Case No. 96-CV-2819 (Dane Co. Cir. Ct., Aug. 7, 1997); Griffin v. Bally Total Fitness Corp., UI Dec. Hearing No. 98608129MW (LIRC March 17, 1999); Depeau v. Moore North America Inc., UI Dec. Hearing No. 99400659GB (LIRC Sept. 23, 1999); Bauer v. Fisher, UI Dec. Hearing No. 99003155MD (LIRC Jan. 31, 2000); Rudolph v. Ort Transportation Inc., UI Dec. Hearing No. 00403230AP (LIRC Feb. 13, 2001); Casper v. Brakebush Brothers, UI Dec. Hearing No. 02006072BO (LIRC April 4, 2003).

The employee also argues that he should have received warnings before being discharged. The employee engaged in intentional conduct in disregard of the standards of behavior the employer had a right to expect and of the employer's business interests. Under such circumstances, an employer need not first resort to some lesser degree of discipline than discharge merely because the conduct was the first offense. See, Coffey v. Sharpe Fabrication Inc., UI Dec. Hearing No. 07603052MW (LIRC Aug. 27, 2007); White v. ARA Cory Refreshment Services, UI Dec. Hearing No. 03600041MW (LIRC May 9, 2003); Gipson v. Marian Catholic Center Inc., UI Dec. Hearing No. 98601313MW (LIRC Mar. 17, 1999, citing Nordberg Mfg. v. DILHR & Morgan, Dane County Circuit Court, Case No. 145-359, July 16, 1975).

The employee states in his petition that the store manager's testimony was not entirely true, but the employee did not identify which portions of the testimony were inaccurate. The administrative law judge obviously made a determination of credibility, and the commission has found no compelling reason in the testimony or elsewhere in the record to question the administrative law judge's credibility determination. Therefore, it defers to the judgment of the administrative law judge as to credibility.

Finally, the employee states that the system failed him because listening to someone is not the same as being there. The commission disagrees. The department routinely conducts telephone hearings particularly where, as here, the geographical distance between the parties and the hearing location warrants it. While being able to observe a witness' demeanor may be helpful, it is not critical to a fair hearing. To the contrary, there are many other ways in which the administrative law judge and commission can assess credibility, such as by noting the witness' tone of voice, pauses, tendency to be direct or evasive, and by considering inconsistencies in the testimony that may call its credibility into question. There is no reason to believe that the fact the hearing concerning the employee's eligibility for benefits was conducted by telephone in any way deprived the employee of a fair hearing. Anderson v. Wood Goods Industries Inc., UI Dec. Hearing No. 08200566EC (LIRC June 12, 2008).

The appeal tribunal decision is affirmed.

charlra . usd : 152 : 2

 

 



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