STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)
PEGGY A WEEKS, Employe
ASHLEY FURNITURE INDUSTRIES INC, Employer
UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99001649LX
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 makes the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The employe worked for about three years, last working as a cutter for the employer, a furniture manufacturer. Her last day of work was February 12, 1999 (week 7), when she was discharged by the employer.
The issue which must be decided is whether the employe's discharge was for misconduct connected with her work.
The employe was discharged as the result of poor work performance and failure to follow instructions. The employe's supervisor talked to the employe about masking prior to running an order. The material called for no masking. The material ran through and masking was applied. The supervisor then set the boards aside and told the crew that at the end of the shift, they needed to peel the masking off the board. At the end of the shift, all the workers but the employe were there to peel the masking off. The employe had left the work station at least four minutes early.
Just prior to the last incident the employe received a verbal warning about leaving early.
The employer did not allow workers to wear rings while working because as a board would go by, if it caught a worker's finger, it could take the worker's finger into the rollers or take the worker's finger off. The supervisor gave her several verbal warnings, and the employe would normally take the rings off. However, on one occasion the employe refused to take her ring off, because she claimed her finger was swollen. When the supervisor suggested that she have the ring cut off by a jeweler, the employe responded "Fuck that. I am not letting anyone cut off my wedding ring." Because the employe would not or could not remove her ring, she was sent home.
The employer contended that the employe's continued failure to follow instructions amounted to misconduct. The commission must agree. The employe contended that she did not hear the supervisor's instruction and this is why she failed to remain and remove the masking. The employe's supervisor was certain that the employe was there when he instructed the workers to peel off the masking, thus, it seems unlikely that she did not hear this directive. Even if the commission were to credit the employe's explanation, she admitted leaving early in spite of the fact that she had been recently warned about doing this. This is wilful behavior in and of itself. In addition, she would have known that her co-workers were removing the masking had she stayed in the work area as directed. Further, the employe had continually disregarded the employer's policy about removing her rings, and would not remove them until specifically instructed to do so by her supervisor. This was a very reasonable safety rule, and the employe's failure to adhere to it was dangerous and unreasonable.
The employe's failure to follow the employer's reasonable directives amounted to such a wilful and substantial disregard of the employer's interests as to constitute misconduct connected with her work.
The commission therefore finds that in week 7 of 1999 the employe was discharged for misconduct connected with her employment within the meaning of Wis. Stat. § 108.04(5).
The commission further finds that the employe was paid benefits for weeks through of 1999 and weeks 8 through 22 of 1999, and weeks 28 and 29 of 1999, amounting to a total of $4,362.00 for which she was not eligible and to which she is not entitled, within the meaning of sec. 108.03(1), Stats. Pursuant to sec. 108.22(8)(a), Stats., the employe 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 decision of the administrative law judge is reversed. Accordingly, the employe is ineligible for benefits beginning in week 7 of 1999, and until seven weeks have elapsed since the end of the week of discharge and she has earned wages in covered employment performed after the week of discharge equaling at least 14 times her weekly benefit rate which would have been paid had the discharge not occurred. She is required to repay the sum of $4,362.00 to the Unemployment Reserve Fund.
The initial benefit computation (UCB-700) issued on February 15, 1999, is set aside. If benefits become payable based on work performed in other covered employment a new computation will be issued as to those benefit rights.
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 September 24, 1999
weekspe.urr : 145 : 1 MC 640.03 MC 695
/s/ David B. Falstad, Chairman
/s/ Pamela I. Anderson, Commissioner
James A. Rutkowski, Commissioner
MEMORANDUM OPINION
The commission discussed witness credibility and demeanor with the ALJ who held the hearing. The ALJ believed that the masking incident was not entirely her responsibility. The ALJ did not believe that the employe heard her supervisor's instructions regarding the masking, and he did believe her fingers were swollen on the day she refused to remove her rings. He believed she was reticent about taking off her rings because she would leave them at her workstation. However, the commission disagrees with the ALJ's credibility assessment because it believes that the employe's behavior with regard to these incidents displays a pattern of refusing to follow directives given by the employer. She may not have wanted to take her rings off because she would leave them at work, however, the employer's rule was a reasonable rule designed to ensure her safety. While the employe may have agreed to take her rings off when her supervisor instructed her to do so, she habitually would report to work with her rings on despite the fact that she was well aware of the employer's rule and the employer's insistence that she follow the rule. The employe continued to leave early in spite of being warned not to do so. For these reasons, and for the reasons set forth in the commission's decision, the commission disagrees with the credibility determination made by the ALJ.
cc: ASHLEY FURNITURE
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