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

CHARLES W OLDENBURG, Employee

CRYSTAL FINISHING SYSTEMS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 11203650EC


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 makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee began working as a die runner for the employer, an aluminum extrusion, fabrication, and finishing business, in August 2003. The employee was primarily responsible for setting up dies in presses according to production schedules, breaking down presses, and cleaning dies safely and efficiently in caustic tanks. The amount of time that it takes to clean a die, or for the caustic to eat away at the die, depends on the cavities in the die. Each die takes a different amount of time in the caustic. If the metal is not totally out of the die, the employer knocks out loose pieces and recycles that metal. The employer does not leave dies in the caustic until the metal is out, because it causes a backup for other dies to get into the tank. The employer needs to turn over the dies as quickly as it can. Each die runner is to go through the tank every two to three hours, which ends up being two to three times each shift. The employee was the employer's most experienced and highest paid die runner. At the time of his discharge, the employee was working five 10-hour days plus some Saturdays.

On January 13, 2011, the employee received a warning for a noted decrease in productivity. It was the first warning he had ever received for poor performance. The employee's supervisor felt the employee performed well on some days but, on others, would not get much work done. Specifically, on January 11 and 12, the employer believed that the employee did much less work than he had been assigned. There were also times when the employee's supervisor needed him, and the employee could not be found.

On May 25, 2011, the employee was disciplined for another noted decrease in productivity. He had made two mistakes in failing to take dies out of the caustic tank before adding cold water, which caused lost production time. In addition, on Saturday, May 21, the employee was asked to come into work to keep the employer caught up with production. The employee did what his supervisor said appeared to be about 15 minutes of work and left after one hour. The company allegedly lost three to four hours of production the following Monday morning, because the water in the tank had to be reheated before the dies could be removed and put into production.

On November 16, 2011, the employer discharged the employee for failing to meet performance standards. On November 12, the employee had intended to change the caustic tank, a three-plus hour project, telling his supervisor that it was dead and would not process the dies. The employee had not checked all of the dies that were in the tank to see if they could come out, as he had been instructed to do. There were nine dies that could have been taken out of the tank, making room for other dies to be processed.

The employee was surprised that he was discharged, despite having received written warnings in January and May. Although the employee did not remember what had happened in January, he did not dispute the warning. The employee explained that his supervisor might not always be able to locate him because the employee's work took him to different parts of the employer's facility and sometimes, after working with caustic chemicals, the employee stepped outside to get a breath of fresh air.

The employee disputed the May warning, but he never appealed it. The employee explained that the caustic was saturated with aluminum and the tank needed to be changed. The employee could not fill up the tank, heat it to 200 degrees, and leave it unattended over the weekend. He claimed he prepped everything for the following Monday.

With respect to the final incident, the employee explained that he was using his discretion. The department was understaffed, he had a lot of work to do, and he was multi-tasking. The employee admitted that he perhaps made an error in judgment by concluding that the caustic tank needed to be changed without first checking every single die in the tank, but he knew his job was on the line and tried to do everything according to the employer's established process.

The employee denied doing anything intentionally to harm the employer or to hold up the process of cleaning dies. The employee's supervisor could not say if the employee was slacking off on purpose. Although a few of the employee's
co-workers complained to the employer about the employee, none of them told the employer that they thought the employee was purposely trying to hurt or slow down the company.

The issue before the commission is whether the employee was discharged for misconduct connected with his employment.

In Boynton Cab Co. v. Neubeck & Ind. Comm., 237 Wis. 249 (1941), the leading case with respect to the meaning of the term "misconduct" as applied to unemployment insurance in the United States, the Supreme Court of Wisconsin said, in part:

[T]he 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.

Unsatisfactory job performance, while a reasonable basis for the dismissal of an employee, does not constitute misconduct for unemployment insurance purposes unless there is some evidence that the employee acted with deliberate disregard for the standards the employer expected of him or, in the alternative, with a very high degree of negligence. See, Merfeld v. Capitol Ford Sales Inc., UI Dec. Hearing No. 04000310MD (LIRC Nov. 12, 2004); Ira D. Smith v. Monarch Corp., UI Dec. Hearing No. 03606737MW (LIRC May 4, 2004); Lazarus v. Aurora Health Care Inc., UI Dec. Hearing No. 96605552MW (LIRC, Jan. 8, 1997).

In this case, the employer did not demonstrate that the employee was intentionally shirking his duties. Neither his supervisor nor his co-workers were under the impression that the employee was purposely slacking off or slowing down. The employer presented no evidence that the employee was engaged in other pursuits when he should have been working, other than perhaps getting a breath of fresh air after working with caustic chemicals. The employee had legitimate reasons for failing to perform all of his duties as quickly as his supervisor would have liked them done, and there was no evidence that the employee intentionally decided that a tank was dead simply to avoid work. The employee worked for the employer for eight years and had no write-ups during the first seven. Even if another person, more energetic or competent than the employee, could perform all aspects of the job, this would not automatically result in a finding that the employee was purposely failing to perform his work and that his actions in performing what his employer felt was substandard work after warning evinced a sufficiently intentional and substantial disregard of employer's interests to constitute misconduct.

The commission therefore finds that, in week 47 of 2011, the employee was discharged but that the discharge was not for misconduct connected with his 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 47 of 2011, if otherwise qualified.

Dated and Mailed March 27, 2012

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

NOTE: The commission did not reverse the ALJ's decision based on a differing impression of witness credibility and demeanor but, rather, because it reached a different legal conclusion when applying the law to the facts found by the ALJ. Consequently, the commission did not discuss witness credibility with the ALJ who held the hearing.

oldench . urr : 152 : 2

 


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