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


DAVID R SAMPLAWSKI, Employe

INDUSTRIAL FABRICATORS INC, Employer

UNEMPLOYMENT COMPENSATION DECISION
Hearing No. 96200458EC


On February 24, 1996, the Department of Industry, Labor and Human Relations (department) issued an initial determination finding that the employe was discharged for misconduct connected with his employment. The employe timely appealed and a hearing was held before an administrative law judge. On April 1, 1996, the administrative law judge issued her appeal tribunal decision, reversing the initial determination, finding that the employe was discharged but not for misconduct connected with his employment within the meaning of section 108.04 (5), Stats. The employer timely petitioned the commission for review of the adverse appeal tribunal decision.

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 approximately 10 months as a welder and a general laborer for the employer, a manufacturer of industrial silencers. The employe's last day of work was February 7, 1996 (week 6), when he was discharged by the employer.

The issue for review is whether the employe's discharge is 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 compensation 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."

At the time of discharge the employe was told that he failed to heed warnings regarding slow production and safety matters. On August 30, 1995, the employer noticed that the employe was not wearing his safety glasses while performing welding work. The employe was again spotted not wearing his safety glasses on November 20, 1995. The employe received a written warning on November 30, 1995 for failing to wear his safety glasses. This written notice also notified the employe that he had failed to meet various production performance standards expected of him. On February 7, 1996, the employer again noticed the employe not wearing his safety glasses. The employe was also cited for smoking in a non-smoking area, for some absenteeism problems and again for slow and careless work production. The employe was discharged for all of these reasons on February 7, 1996 (week 6).

It was well established that "mere inefficiency, unsatisfactory conduct, failing in good performance as a result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good faith errors in judgment or discretion" is not misconduct. In that respect the employe's poor performance cannot serve as a basis for a finding of misconduct. However, the employe's poor performance was not the sole reason for his discharge. In particular the employer cited the employe's failure to wear safety glasses and smoking in a non-smoking area. While the evidence regarding the employe's smoking is inclusive, the employe's failure to wear safety glasses, despite both a verbal and written warning was wilful and intentional conduct.

The employe was verbally warned in August of 1995 for not wearing his safety glasses. He also received a written warning in November 1995. He was again verbally told on February 7, 1996 to wear his safety glasses. The employe explained that he could not see out of his safety glasses very well when working. The employe alleges that the employer did not impose this safety rule until January of 1996. The employer testified that this safety rule has always been in place and that the day before the employe was discharged he got paint thinner in his eyes because he was not wearing his safety glasses. Given the nature of the employer's business, the commission is persuaded that the employer had this safety rule in place prior to January of 1996. Based on all these circumstances, the employe's repeated failure to heed the employer's safety warnings, constitutes an intentional disregard of the employer's interests as well as the standard of conduct the employer had a right to expect of the employe as a welder for the employer. Thus, while the employe's poor performance considered alone would not support a finding of misconduct, the employe's intentional disregard of the employer's safety rules, serves as the basis of the commission's reversal in this regard.

Therefore, the commission finds that in week 6 of 1996, the employe was discharged for misconduct connected with his employment, within the meaning of section 108.04 (5), Stats.

The commission further finds that the employe was paid benefits amounting to a total of $3,152.00 for which he is not eligible and to which he is not entitled, within the meaning of section 108.03 (1), Stats. Pursuant to section 108.22 (8)(a), Stats., he is required to repay such sum to the Unemployment Reserve Fund.

The commission further finds that waiver of benefit recovery is not required under section 108.22 (8)(c), Stats., because although the overpayment did not result from the fault of the employe as provided in section 108.04 (13)(f), Stats., the overpayment was not the result of a department error. See section 108.22 (8)(c)2., Stats.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employe is ineligible for benefits beginning in week 6 of 1996, 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. The employe is required to repay the sum of $3,152.00 to the Unemployment Reserve Fund.

Dated and mailed June 28, 1996
samplda.urr : 135 : 1 MC 695

Pamela I. Anderson, Chairman

Richard T. Kreul, Commissioner

David B. Falstad, Commissioner

MEMORANDUM OPINION

The commission did not confer with the administrative law judge because it did not reverse on the basis of witness credibility or demeanor. Transamerica Ins. Co. v. ILHR Dept., 54 Wis. 2d 272, 283-84 (1972). Rather, the commission reaches a different legal conclusion upon essentially the same set of facts as found by the administrative law judge. Consequently, a credibility conference was not necessary.

The commission bases its finding of discharge for misconduct upon the employe's intentional failure to wear his safety glasses, despite several warnings. The employe's deliberate refusal to follow the employer's safety rule, given the nature of the employer's business, leads the commission to conclude that the employe's discharge was for misconduct connected with his employment.

cc: INDUSTRIAL FABRICATORS INC


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