STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)
JOHN J DOMRZALSKI, Employe
JEMA INDUSTRIES INC, Employer
UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98402726AP
On October 27, 1998, the Department of Workforce Development issued an initial determination which held that the employe was discharged for misconduct for unemployment insurance purposes. The employe filed a timely request for hearing on the adverse determination, and hearing was held on December 1, 1998 in Appleton, Wisconsin before a department administrative law judge. On December 4, 1998, the administrative law judge issued an appeal tribunal decision affirming the initial determination of misconduct. The employe filed a timely 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 the case, the commission issues the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The employe worked four and a half months as a material handler for the employer, a paper concern. The employer discharged the employe on October 8, 1998 (week 41), following a written comment the employe made on a roll of paper he had dropped. The commission concludes that the employe's conduct was not severe enough to constitute misconduct for unemployment insurance purposes, and so reverses the appeal tribunal decision.
The employe worked second shift. When he reported to work on his last actual day of work, October 7, he was informed that the employer was eliminating overtime. The employe's responsibilities that day were to keep one of the employer's rewind machines stocked with rolls of paper, and the employe had a list of rolls he had to retrieve from the stock in order to do so. At the end of his shift, the employe was getting a roll that was at the bottom of a set of rolls stacked almost to the ceiling. The employe could not pull the upper two rolls down one at a time because the top roll had been stacked too close to the ceiling. For this reason, the employe had to pull down the top two rolls, clamping onto the bottom one. He did so, brought the two rolls away from the stack but, when he was maneuvering them or setting them down, the top roll slipped off and fell onto the ground. The employe wrote on the roll that he had dropped the roll, and then added what is at issue: "not enough time for safty [sic]." When the employer discovered what the employe had done, the employer discharged him for having written the remark and for what the employer believed it meant, that the employe was not working in a safe manner because he did not believe he had time to do so.
Misconduct for unemployment insurance purposes is an intentional and substantial disregard by an employe of standards an employer reasonably may expect of its employes. The employer inferred from the employe's written statement that he was intentionally working unsafely because the employer had taken away the employes' overtime. The record does not indicate, though, that the employer's having taken away the overtime had anything to do with the accident on the employe's last day of work. Rather, the evidence is unrebutted that the accident was due to how the two rolls in question had been stacked in the first instance.
This leaves simply the written comment itself which, the commission concludes, was at worst an isolated instance of poor judgment on the employe's part. The point of the remark, as well as of other complaints the employe had made to the employer, concerned general safety issues in the plant, including the height of stacks of rolls of paper and distances between those rolls, as well as lighting in certain areas of the plant. The employer conceded there was a light in the area which chronically was not functional. In addition, the employer's general manager had commended the employe on the preciseness of the employe's work. For these reasons, the commission does not believe it reasonable to attribute the intent to the employe's actions the employer attributed.
The commission therefore finds that, in week 41 of 1998, the employe was discharged but 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 employe is eligible for unemployment insurance if he is otherwise qualified.
Dated and mailed: March 1, 1999
domrajo.urr : 105 : 6 MC 610.06 MC 695
/s/ David B. Falstad, Chairman
/s/ 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. The commission's disagreement with the administrative law judge is as to the legal effect of the employe's comment. The administrative law judge inferred a poor attitude on the employe's part, from the remark. For the reasons stated in the above decision, the commission concludes otherwise.
Pamela I. Anderson, Commissioner (Dissenting):
I am unable to agree with the result reached by the majority herein and I dissent. I agree with the administrative law judge that the reason wrote the comment "not enough time for safty," was because he was reacting the reduction in overtime. Under the facts of this case, I do not see how a lack of lighting played any role in the incident of dropping the role of paper.
For these reasons, I would affirm the decision of the administrative law judge.
Pamela I. Anderson, Commissioner
cc: JEMA INDUSTRIES INC
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