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


MILTON P JOHNS, Employe

NEHRINGS SENDIKS ON OAKLAND LLC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99604310MW


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 about four months as a produce trimmer for the employer, a grocery store. He actually worked 19 years at the same grocery store, which came under new management in the last four months that he worked at the store. His last day of work was August 22, 1998 (week 34).

On the employe's last day of work the owner, Mr. Nehring, became upset watching the employe converse with a customer. The employer became even more upset because the employer believed the employe was not punched out during the conversation despite claiming he was. After the employe returned to work the owner asked whether the employe was ready to work. The employe indicated in the affirmative. At that point the owner informed the employe that he was finished and grabbed the employe by the shirt. At that point the employe uttered a profanity.

The issue to be decided is whether the employe was discharged 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."

The commission finds that the employe's discharge was not for misconduct connected with his work. Clearly the employer was dissatisfied with the amount of time the employe spent talking with customers and on the phone. However, the commission does not find that the employe was acting intentionally in disregard of the employer's interests. While the employer maintained that the employe used profanity and then was discharged, the commission has credited the employe's testimony on this point. It is clear from the testimony that only the owner and the employe knew the sequence of events occurring prior to the employe's discharge. The owner was clearly extremely upset with the employe and grew increasingly agitated with the employe. The commission is convinced that the employe did not use profanity except in response to the owner discharging him and then grabbing him.

The commission therefore finds that in week 34 of 1998 the employe was discharged from his employment but not for misconduct connected with his work within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employe is eligible for benefits beginning in week 34 of 1998, if otherwise qualified. Since the employe is eligible for benefits as a result of this decision, there is no
overpayment with respect to this issue. The employe is not required to repay benefits previously paid to him.

Dated and mailed November 12, 1999
johnsmi.urr : 132 : 6 :   MC 655  MC 668

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

The commission did discuss witness credibility and demeanor with the ALJ. As reflected in the ALJ's decision, the ALJ credited the testimony offered by the employer and its witnesses over that offered by the employe and his witness. For the reasons set forth above, the commission disagrees with the ALJ's credibility determination.


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