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


MICHAEL L WILLIAMS, Employe

E & B INSULATION LLC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99200129LX


An administrative law judge 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 administrative law judge. Based on its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked for the employer, an insulation contractor, for about two years as an installer. His last day of work was December 31, 1998, and he was discharged on January 4, 1999 (week 2).

On October 5, 1998, the employe was assigned the job of installing air chutes and blowing insulation into a customer's ceiling. A few days later the customer called the employer and complained of poor workmanship. Specifically, the customer contended that the employe was supposed to have blown in twelve inches of insulation, but blew in only half that much, and that the insulation dam was shoddy. The employer talked to the employe about the job, but the employe contended it was done correctly. At the hearing, however, the employe testified that he did not use the right method for installing the insulation, and that he was supposed to have measured the depth of the insulation against a stick but did not. The employer later sent a different installer out to the site to make corrections.

On November 17, 1998, the employer received a telephone call from a contractor who complained that the employe was uncooperative and used bad language. The employer told the employe he had to treat contractors in a civil and respectful manner. The employe disagreed with the contractor's version of events, explaining that the contractor had been rude to him and his partner, and that it was his partner who got into the argument with the contractor. The employe further explained that he had not realized the individual in question was the contractor, and thought he was another laborer.

The employer also received a call about problems on a job the employe had worked on on December 11. The employer notified the employe it had a callback on another of his jobs, but the employe was unresponsive. In January of 1999 the employer sent workers out to the job site to install additional insulation.

On or about December 13 the employer received a complaint from a contractor that the depth of the insulation on a project the employe worked on during the previous week was not what was specified in the contract agreement. The employer told the employe that the next time he was in the area he should stop and see what was wrong with the job. Later that week the employe checked the job site and reported back that in places there was only eight inches of insulation where there should have been fourteen inches. The employer told the employe he either had to get the jobs right or make a change, and the employe assured the employer that these problems would not continue.

On December 15 a customer contacted the employer to complain that mold was growing near an outside eave a month after the employe had completed a job. The employer determined that the employe had failed to install insulation to the outside edges of the attic area. The employer again notified the employe that he had to make sure he was getting jobs done right.

On December 31, 1998, the employer received a complaint from a contractor that the employe had damaged some screens and put a smudge on a wall, and that he had used inappropriate language towards the contractor. When the employer confronted the employe about this, the employe agreed he was responsible for the damage, but denied that it was due to any carelessness on his part. The employer also told the employe it was concerned about his language and conduct with the contractor, to which the employe responded that he felt the job was dumped on him and that he was "not going to be the nigger around here." The employer then indicated that if the employe did not like his job he could find a different one. The employe stormed out of the office and slammed the door.

When the employe reported for work on January 4, 1999 (week 2), the employer notified him that he was discharged for poor workmanship and insubordination. The issue to be decided is whether the employe's discharge was due to misconduct connected with his employment.

In Boynton Cab v. Neubeck, 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 employe, 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 employe'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."

The employer contended that the employe engaged in misconduct in that he used inappropriate language towards contractors, performed shoddy workmanship, and because of his outburst to the employer on his last day of work. Regarding the first of the employer's allegations, the employe denied having engaged in the conduct alleged, and the employer presented no firsthand evidence to the contrary. Consequently, the commission does not believe those allegations can form the basis for a finding of misconduct.

The commission does believe, however, that the employe's actions in repeatedly performing substandard work evinced a wilful and substantial disregard for the employer's interests. The employe acknowledged that he made the installation errors in question and stated that he "screwed up." He testified that he was supposed to measure the depth of insulation with a stick, but that he sometimes failed to do so because he would lose the stick while blowing insulation. The employe acknowledged that he could have gotten a new stick and that he was required to have the tools of the job with him, but indicated that he made the errors because he felt he was picked on and bullied by the employer's owners due to personal reasons and because he was frequently assigned to install Ultratherm insulation, a type of insulation that caused him to break out in a rash and distracted him from the job. The commission does not find these excuses compelling. To the contrary, the employe was on notice that the employer expected him to improve his job performance, and the evidence suggests that it would have been a rather simple matter for him to do so, had he chosen to make the effort.

The commission also believes that the employe's actions on his last day of work evinced misconduct on his part. At the hearing the employe explained that his outburst was excusable because it related to the fact that the employer, although aware of his skin problems, routinely and deliberately assigned him all of the Ultratherm work. The commission disagrees. A few months before he was discharged the employe did tell the employer that the Ultratherm affected his skin, and the employer suggested that the employe wear a hooded jacket while doing installations. The employe testified that he did wear long sleeves, but that this did not prevent the fiberglass from getting through to his skin. However, it is unclear from the record whether he explained this to the employer, and the commission is unpersuaded that the employe ever put the employer on notice that he suffered from a skin allergy or specifically asked not to be assigned work installing Ultratherm. Indeed, given that another worker had been removed from this duty for medical reasons, it seems unlikely that the employer would have forced the employe to continue performing that work, had he clearly notified it that he could not do so. Given these circumstances, the commission does not believe that the employe's inappropriate and disrespectful outburst on his last day of work was justified based upon any blameworthy actions on the part of the employer, and believes that it evinced a wilful and substantial disregard for the employer's interests and the standards the employer had a right to expect of him.

The commission, therefore, finds that in week 2 of 1999, the employe was discharged for misconduct connected with his employment, within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employe was paid benefits in weeks 2 through 6 of 1999 in the total amount of $1035, for which he was not eligible 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 is required to repay such sum to the Unemployment Reserve Fund.

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

DECISION

The appeal tribunal decision is amended as to the week of issue and reversed. Accordingly, the employe is ineligible for benefits beginning in week 2 of 1999 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 is required to repay the sum of $1035 to the Unemployment Reserve Fund.

Dated and mailed May 6, 1999
willimi.urr : 164 : MC 664  MC 640.05

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner

NOTE: The commission conferred with the administrative law judge regarding witness credibility and demeanor. The administrative law judge indicated that she credited the employe's testimony that he had not received a lot of training. However, even assuming that the employe did not receive much training, the undisputed evidence in the record indicates that the employe was doing a good job up until his last few months of employment, and by the employe's own testimony, the mistakes he made could have been prevented had he taken basic steps to measure the insulation. The administrative law judge also indicated that she believed the Ultratherm issue probably came up more than the one time during which the employer suggested the employe wear a hooded sweatshirt. However, the record does not demonstrate whether or when the issue arose again, and the commission is unwilling to assume that the employe put the employer on notice that he had an allergy and could no longer work with Ultratherm.


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