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


MICHAEL W WILLIAMS JR, Employe

RITUS RUBBER CORP, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98607065MW


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 employe is eligible for benefits, if otherwise qualified.

Dated and mailed: January 22, 1999
willimi.usd : 105 : 1 MC 660.01  MC 663  MC 664

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission has affirmed the appeal tribunal decision in this case, because it agrees with the administrative law judge's conclusion of no misconduct. The employe had been making reasonable effort to improve his work performance and, indeed, the employer's computer work performance records indicate improvement by the employe. The employer had alleged that the employe's attitude contributed to the discharge, specifically, that the employe indicated he was not checking his parts and that he did not care, when his supervisor questioned him about reject parts the employe had produced on his last day of work. That supervisor did not appear at the hearing to testify on the employer's behalf, however. The employe freely admitted having made reject parts and also that he had not checked them as carefully as he should have. The employe strongly denied having said that he did not care about the work, though. Given this factor, the commission cannot conclude that the employe's failures on his last day of work were intentional or so negligent as to amount to the gross negligence which is misconduct for unemployment insurance purposes. For these reasons, and those stated in the appeal tribunal decision, the commission has affirmed that decision.

 

PAMELA I. ANDERSON, COMMISSIONER (dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. This is a close case because the employe's supervisor did not appear as a witness. The employe was not discharged for the quantity of his production, he was discharged for insubordination.

In the write-ups the employe received for his poor quantity of production, the supervisor wrote "Mike can perform at the expected levels if he reports on time, starts his machine up promptly, and is at his press when it opens." On the day of discharge, the employe reported seven minutes late and was found to have quality problems. The employe admitted he wasn't checking the parts like he should have been. Prior to the last day, the employer concern with the employe was his quantity of production. The employe was able to meet the employer standards some of the time but did not always meet the standard. The employe had the ability to do the job but did not always do the job. When he did not check parts and made rejects, the employer fired him for misconduct. This was an attitude problem.

The employe was not the most credible witness. He testified that the employer gave him no reason for discharge. He agreed that he was sent exhibit 6 which says he was discharged for insubordination. He testified both that he did not talk to his supervisor on October 7, 1998 and that he was brought into his supervisor's office, where he was discharged. He says "I was not insubordinate when I talked to Mr. Szypzak on 10/7."

Even without the supervisor's testimony, I believe that there is enough evidence to show that the employe disregarded the standards of behavior which an employer has the right to expect of his employe and thus meet the misconduct standard under Boynton Cab Co. v Neubeck & Ind. Comm., 237 Wis. 249(1941). I would reverse and deny benefits.

Pamela I. Anderson, Commissioner


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