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


WILLIAM J RALEIGH, Employe

UFE INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99200063HU


On December 24, 1998, the Department of Workforce Development issued an initial determination which held that the employe's discharge was not for misconduct connected with his employment. The employer filed a timely request for hearing on the adverse initial determination, and hearing was held on February 2, 1999 in Hudson, Wisconsin before a department administrative law judge. On February 5, 1999, the administrative law judge issued an appeal tribunal decision affirming the initial determination. The employer 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, and after consultation with the administrative law judge, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked over the course of three years for the employer, most recently as a forklift operator. The employer discharged him on December 14, 1998 (week 51), following the employe's having left his forklift running on December 8, without putting on the emergency brake, and clocking out and leaving in the middle of his shift. The commission concludes that this failure by the employe was misconduct for unemployment insurance purposes, and so reverses the appeal tribunal decision.

The employer discharged the employe for the single incident mentioned above. In the afternoon of the employe's last day of work, the employe encountered difficulty in maneuvering his forklift in an aisle. The employe eventually became so frustrated that he simply got off his forklift (leaving it running), put it in neutral gear (but did not put on the emergency brake), and punched out and left work. This sequence of events occurred during, and not at the end of, the employe's work shift. Shortly after the employe left, his forklift began moving and ran into a wall of the warehouse.

In Boynton Cab Co. 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 Supreme Court of Wisconsin 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.

The commission concludes that the employe's conduct meets this standard. The employe's actions created a real possibility of serious injury to co-workers or significant damage to the employer's property, or both. The employe argued that it was common practice not to engage the emergency brake on the forklift when they were on level ground; that may be so, but the employe conceded that it was not normal practice to walk away from the forklifts and leave them running. The employe essentially left running a potentially dangerous piece of equipment, and walked out of the plant. In doing so, he violated specific directives in the employer's training manual which, in at least five places in the course of eight pages, specifically indicates the proper procedure for parking a forklift. In sum, the employe's abandonment of the running forklift was so negligent as to meet the above-quoted standard for misconduct.

The commission therefore finds that, in week 51 of 1998, the employe was discharged for misconduct connected with his work, within the meaning of Wis. Stat. § 108.04 (5). The commission also finds that the employe was paid unemployment insurance in the amount of $278 per week for each of weeks 51 of 1998 through 11 of 1999, totaling $3614, 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, it 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 unemployment insurance beginning in week 51 of 1998, and until seven weeks have elapsed since the end of the week of discharge and the employe has earned wages in covered employment performed after the week of discharge equaling at least 14 times the employe's weekly benefit rate which would have been paid had the discharge not occurred. The employe is required to repay $3614 to the Unemployment Reserve Fund.

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 June 7, 1999
raleiwi.urr : 105 : 3   MC 658   MC 660.01

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner


NOTE: The commission conferred with the administrative law judge before determining to reverse the appeal tribunal decision in this matter. The administrative law judge had reasoned that the employer had not proven with firsthand evidence that the employe's forklift ran into the wall of the warehouse. The commission agrees that only hearsay evidence supports that assertion. The discharge also was based, however, upon the employe's simply walking away from the forklift and leaving it running. This is the primary basis for the commission's reversal of the appeal tribunal decision. Whether the forklift actually ran into the wall of the warehouse does not detract from the seriousness of the employe's failure. To put it simply: it is absolutely unacceptable for an employe to leave his or her forklift running, get off it without engaging the emergency brake, and simply walk out the door.
Repayment instructions will be mailed after this decision becomes final. The department will withhold benefits due for future weeks of unemployment in order to offset overpayment of U.C. and other special benefit programs that are due to this state, another state or to the federal government.

Contact the Unemployment Compensation Division, Collections Unit, P. O. Box 7888, Madison, WI 53707, to establish an agreement to repay the overpayment.

cc: UFE INC

CAROL WEIDINGER
R E HARRINGTON


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