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


DALE J DEPEAU, Employe

MOORE NORTH AMERICA INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99400659GB


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 almost three years, most recently as an ink checker on limited duty assignment, for the employer, a direct marketing business. He last worked for the employer on February 17, 1999 (week 8).

The employe was injured in a work-related accident on August 13, 1998. He had been on limited duty assignment, pursuant to his doctor's instructions, since October, 1998.

The employer's occupational health nurse reviewed the employe's doctor's return to work recommendations on or about January 21, 1999. The recommendations included "occasional" bending, squatting, climbing, twisting and reaching. She testified that, because she did not know what the doctor meant by "occasional," she was reading his restrictions at the time as an instruction to avoid all bending and twisting. In response to that information, she prepared work instructions for the employe on January 25, which included the following:

"After a task analysis of the ink checker job a reasonable accommodation to meet your concerns is to sit on a chair as I earlier suggested. Placing the chair sideways to the ink bucket eliminates the concern of bending, turning or squatting. I was told that this accommodation has been used for other employes with similar work recommendations."

On February 4, the occupational health nurse accompanied the employe to his doctor's appointment. Both questioned the doctor about the meaning of the "occasional" restriction on bending, squatting, climbing, twisting and reaching. The doctor clarified that he meant that term to mean bending and twisting "not more than 15 min(utes) out of one hour." Other than that clarification, the employe's work restrictions did not change in any way from those stated on the January 21 form.

On February 10, the employe's acting supervisor wrote a note in the log book to alert ink checkers that he wanted the ink on two presses checked twice during each shift. The employe wrote a responsive note, indicating that he was having a problem performing all of his work on his shift without the additional checking assignment, because he was using a chair when checking ink buckets. The acting supervisor then asked a human resources representative what the employe's restrictions were. The human resources representative relayed this question to the occupational health nurse, who indicated that she had never intended the employe to understand her January 25 memo to mean that he had to perform all tasks while sitting in a chair. The occupational health nurse then prepared a new analysis, dated and provided to the employe on February 15. These new recommendations included the following:

"Your work recommendations (attachment dated 2/4/99) state you can bend, squat, and reach 15 minutes each, out of an hour. The chair had been recommended to eliminate all bending according to previous work recommendations dated 1/21/99 (attached). If the chair impedes your ability to ink check the presses in a timely fashion, I would suggest the following:

When the employe received this missive on February 15, he was understandably confused, because his work restrictions as provided by his doctor had not changed since the 1/25/99 evaluation. The nurse had been the acting party in recommending that he use a chair, even though the doctor had not indicated in his January 21 opinion that the employe was restricted to bending, squatting or twisting "not at all," which was one of the elections he could have made on the form. It was the nurse's choice to take the most conservative reading of the term "occasional." And, with those restrictions, she had instructed the employe to use a chair.

The employe was concerned that the February 15 memo meant that the employer was attempting to make him work outside his restrictions. He knew that he was scheduled for a functional capacity evaluation on February 18 as part of his worker's compensation participation, and he could not understand why the employer would not wait for the results of that evaluation before changing his work procedures. Further, his doctor had told both he and the occupational health nurse when they last saw him that he would be out of town on vacation when the results of the functional capacity evaluation were received. The employe, therefore, believed he could not reach his doctor to check out the nurse's suggestions before his next scheduled appointment on March 4.

The employe was instructed to meet with the occupational health nurse and the human resources representative at the very end of his shift on February 16. At that meeting, the human resources representative demonstrated a clear lack of understanding of the medical facts of the employe's case. Unfortunately, for some reason that is unclear on the record, the human resources representative appeared to "take the point," initiating most of the conversation during the meeting. The employe testified credibly that he believed the human resources representative was saying that he "didn't want me to use the chair" at all. The employe attempted to gain clarification from the occupational health nurse regarding when he could use the chair, and pressed to find out what "numerous ink buckets" meant. During the progress of the conversation, the employe used obscenities on more than one occasion to describe the manner in which he believed he was being treated by the employer. Finally, the employe realized it was past the time for the end of his shift (7:00 a.m.) and that he would need to leave immediately if he was to timely arrive at his work hardening appointment (part of his workers' compensation program) at 8:00 a.m. He told the human resources representative and the occupational health nurse that he had to leave to attend work hardening, and he left the human resources area at 7:03 a.m. At the end of that meeting, the human resources representative determined that the employe should be disciplined for "inappropriate behavior" at the meeting. He and his supervisor prepared a disciplinary notice (written warning). That warning did not entail any additional disciplinary action (a suspension, e.g.), but it did contain the statement: "Failure to cooperate with team leader or any other representative of (the employer) or conduct himself in an appropriate manner may result in further disciplinary action which may include termination." The human resources representative intended to present the employe with this written warning at the end of his shift on the following morning.

The employe reported to work and worked his normal shift on the evening of February 16. At approximately 6:45 a.m. on February 17, his supervisor came to him and said, "They want to see us in human resources." The employe, again using obscenities, refused to go to the human resources area. The supervisor repeated the request two times, and the employe refused again each time. The supervisor called the human resources representative, and then told the employe he should leave work at the end of his shift, and not report again until he was contacted by the human resources department. The employe was formally notified on Monday, February 23 that he employer was terminating him "due to your uncooperativeness and inappropriate behavior." He never again worked for this employer.

The initial issue to be decided is whether the employe voluntarily terminated his employment or was discharged.

The commission finds that the employer discharged the employe from his employment. The refusal of a particular directive, even a repeated refusal, is not in and of itself inconsistent with continuing employment. It was the employer's decision that the employe's conduct warranted his discharge. The employer therefore was the moving party in ending the employment relationship.

The second issue to be decided is whether the employe's discharge was for misconduct connected with his employment.

In Boynton Cab Co. v. Neubeck & Ind. Comm., 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 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. 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."

In this case, the employer made a reasonable request to the employe to report to human resources. Despite the employe's prior experiences, he was not justified in refusing three times to even report to human resources. The employe made the assumption that the February 17 meeting would be "more of the same." Regardless of the purpose of the February 17 meeting, however, the employer was instructing the employe to report to one of its departments, during work hours. The employer's request on February 17 was not unreasonable. The employe's refusal to report to human resources as directed constituted a wilful refusal to carry out a direct instruction. The employe's refusal constituted insubordination and demonstrated an intentional and substantial disregard of the employer's interests and of standards of behavior the employer had a right to expect of the employe.

The commission therefore finds that in week 8 of 1999 the employe was discharged from his employment and for misconduct connected with his work within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is modified to conform to the foregoing and as modified is affirmed. Accordingly, the employe is ineligible for benefits beginning in week 8 of 1999, 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 weekly benefit rate which would have been paid had the discharge not occurred.

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 23, 1999
depeada.urr : 132 : 1 : MC 626  MC 640.03

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner


MEMORANDUM OPINION

The employe has petitioned for commission review of the adverse appeal tribunal decision which found that he voluntarily terminated his employment and not for any reason permitting immediate benefit payment. The commission has reviewed the record in this matter and agrees with the employe that he was in fact discharged from his employment. While the employe disobeyed a direct order, that is not in and of itself inconsistent with continuing employment. It was the employer who made the decision that it no longer wished to employ the employe after he failed to obey a reasonable order, not once, but three times. However, having found that the employe was discharged, the commission must find that the employe's discharge was for a reason that constituted an intentional and substantial disregard of the employer's interests. The commission essentially agrees with the administrative law judge's Findings of Fact and Conclusions of Law as they relate to whether the employe was reasonable in his refusal to obey the employer's orders.

cc: ATTORNEY WILLIAM HINKFUSS
HINKFUSS SICKEL PETITJEAN & HINKFUSS

DAVID W LARSON
C/O MOORE USA INC

ATTORNEY LAURENCE B OPPENHEIMER
COHEN SWADOS WRIGHT HANIFIN BRADFORD & BRETT LLP


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