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


FLOYD COOPER, Employe

SHERWIN WILLIAMS CO, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99605024MW


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 ineligible for benefits beginning in week 25 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 employe's weekly benefit rate which would have been paid had the discharge not occurred. The employe is required to repay the sum of $1,323.00 to the Unemployment Reserve Fund. The initial Benefit Computation (Form UCB-700), issued on June 21, 1999 is set aside. If benefit payments become payable based on other employment, a new computation will be issues as to those benefit rights.

Dated and mailed October 20, 1999
coopefl.usd : 145 : 1  BR 335.04

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

In his petition for commission review the employe asserts that he does not believe that he should have an overpayment because the overpayment was the result of department error in the issuance of the initial determination. However, the ALJ's decision was made after a hearing, during which a record was made and all the events which resulted in the employe's discharge were examined. The initial determination was made on the basis of employe's statement without information from the employer. Therefore, it cannot be said that the ALJ's reversal of the appeal tribunal decision was the result of department error.

The employe further asserts that the ALJ did not consider his side of the story. However, that conclusion is erroneous. The ALJ specifically found that the employe conceded physically assaulting the warehouse manager. The ALJ further noted that even if the employe disagreed with the warehouse manager's instructions, he should not have assaulted him but should have informed the employer's management of his objections. Thus, the ALJ did not fail to consider the employe's position. However, the employe's actions in assaulting and threatening the warehouse manager demonstrated such a wilful and substantial disregard of the employer's interests as to constitute misconduct connected with his employment.

cc: MELISSA THOMPSON
CLAIMS REPRESENTATIVE
C/O GATES MC DONALD


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