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


LAWRENCE P BUDNEY, Employe

FOREMOST INDUSTRIAL EXCHANGE, Employer

UNEMPLOYMENT COMPENSATION DECISION
Hearing No. 97605813MW


On August 23, 1997, the Department of Workforce Development issued an initial determination which held that the employe's discharge was for misconduct for unemployment compensation purposes. The employe timely requested a hearing on the adverse determination, and hearing was held on September 24, 1997 in Milwaukee, Wisconsin before a department administrative law judge. On October 2, 1997, the administrative law judge issued an appeal tribunal decision reversing the initial determination of misconduct. The employer timely filed a petition for commission review of the adverse appeal tribunal decision, and the matter now is ready for disposition.

Based upon the applicable law and the records and other evidence in this case, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked approximately five and a half years for the employer, an industrial supply business. The employer discharged him on July 18, 1997 (week 29), for derogatory remarks the employe made three weeks earlier in a telephone conversation with the employer's owner. The commission believes the employe's remarks went too far and that they constitute misconduct for unemployment compensation purposes. The commission therefore reverses the appeal tribunal decision.

The events leading to the discharge of the employe began with the employer's investigation of another of its managers for alleged improprieties. The employer questioned the employe about the other manager on June 20. In that meeting, the employe lied to the owner and the other participants in the questioning. The employe was absent from work the next day, and several days thereafter. The employer telephoned the employe's father to determine whether the employe was alright, because the employer was unable to reach the employe.

The employe was upset by the employer's contact with the employe's father, and so telephoned the employer's owner in Los Angeles on June 25. In the conversation, the employe referred to the owner as a Jew-boy and to the owner's wife as a Jew-broad. He also said they would "find out what real pain was" when they came to Milwaukee. Approximately three weeks later, a private investigator hired by the employer interviewed the employe with regard to the June 25 telephone conversation. In that interview, the employe said that he did not mean for any of his remarks to be construed as anti-Semitic or of a threatening nature. The next day, the employer discharged the employe.

Misconduct for unemployment compensation purposes is the intentional and substantial disregard by an employe of standards an employer reasonably may expect of its employes. The employe's remarks easily meet this standard. Despite the employe's self-serving assertion to the contrary, the first remarks are ethnic slurs and the latter remark essentially is to the effect that the employe in some manner will inflict pain upon the employer when the employer is next in Milwaukee. Even if this is not construed as a threat of physical harm, it still goes too far.

The commission therefore finds that, in week 29 of 1997, the employe was discharged for misconduct connected with his employment, within the meaning of Wis. Stat. § 108.04 (5). The commission also finds that the employe was paid benefits totaling $3,815.00, for weeks 30 through 50 of 1997, for which he was ineligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03 (1). Pursuant to Wis. Stat. § 108.22 (8)(a), he must repay such sum to the Unemployment Reserve Fund. The commission finds, finally, that waiver of benefit recovery is not required under Wis. Stat. § 108.22 (8)(c). Although the overpayment did not result from employe fault as provided in Wis. Stat. § 108.04 (13)(f), the overpayment also was not the result of departmental error. See Wis. Stat. § 108.22 (8)(c)2.

DECISION

The appeal tribunal decision is reversed. Accordingly, the employe is ineligible for benefits beginning in week 29 of 1997, and until seven weeks have elapsed since the end of the week of discharge and he has earned wages in covered employment performed after the week of discharge equaling at least 14 times his weekly benefit rate which would have been paid had the discharge not occurred. He must repay $3,815.00 to the Unemployment Reserve Fund. Department form UCB-700, issued on July 21, 1997, is set aside.

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: December 23, 1997
budnela.urr : 105 : 1  MC 665.04  MC 668

Pamela I. Anderson, Chairman

David B. Falstad, Commissioner

James A. Rutkowski, Commissioner

NOTE: The commission did not confer with the administrative law judge before determining to reverse the appeal tribunal decision in this case. Such conferral is required where the commission is considering reversal of an appeal tribunal decision, and credibility was a factor in the administrative law judge's factfinding. In this case, the commission has accepted the facts found by the administrative law judge, but simply reaches the opposite legal conclusion from those facts.

In finding the discharge not to have been for misconduct, the administrative law judge reasoned that other management personnel had given the employe a bonus check and had made remarks to the effect that the employe was forgiven for his remarks to the president. The management personnel who made those remarks may have forgiven the employe for his remarks, but that does not mean the owner was required to do so or that he in fact had done so.

cc: ATTORNEY ROBERT N MEYEROFF S C

ATTORNEY CHRISTOPHER J CONRAD
NELSON DRIES & ZIMMERMANN S C


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