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


JOHN P KEENA, Employe

TREK BICYCLE CORPORATION, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99002806JV


On July 21, 1999, 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, and hearing was held on August 11, 1999 in Janesville, Wisconsin before a department administrative law judge. On August 13, 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 during six months as a forklift operator for the employer, a bicycle manufacturer. The employer discharged him on July 7, 1999 (week 28), for use of chewing tobacco while on the employer's premises. The commission concludes that this behavior by the employe, in the limited circumstances of this case, constitutes misconduct for unemployment insurance purposes, and so reverses the appeal tribunal decision.

The employer's written work rules prohibit use of tobacco products on its premises. The work rules state:

Because of increased evidence linking smoking to many health hazards and Trek's desire to foster the image of a leading health-wise bicycle Company, we have taken the initiative in establishing a policy that prohibits smoking and use of tobacco products on all Company property.

The purpose of this policy is to provide a healthy, comfortable, and productive work environment for employees. This policy applies to all employees, vendors, visitors, and other persons on Company owned and operated facilities and their grounds [emphasis in original].

In addition, during employe orientation employes must sign a training checklist, one item of which is: "Tobacco products are absolutely not permitted at any time while on company grounds." Further, the employer's premises has signs which state that it is a tobacco-free and smoke-free facility, as well as signs which indicate "Use of Tobacco Products on Company Property will Result in Immediate Dismissal." Finally, it is the employer's regular practice to discharge immediately individuals who violate the employer's no-tobacco products rule.

Misconduct for unemployment insurance purposes is the intentional and substantial disregard by an employe of standards an employer reasonably may expect of its employes. In the narrow circumstances presented by this case, the commission concludes that the employe's use of chewing tobacco meets this standard. The employer had made a conscious decision to prohibit smoking and use of tobacco products on all company property, in its endeavor to "foster the image of a leading health-wise bicycle Company." It was the employer's right to do so. The manual for employes specifically stated that smoking and use of tobacco products on company property was prohibited. The Employee Safety Orientation Training checklist contains the statement, which the employe both checked and initialed, that tobacco products are absolutely not permitted at any time while on company grounds. Signs around the employer's plant reiterate that the employer is a "Tobacco Free Facility," and indicate that use of tobacco products on company property will result in immediate dismissal. Other signs state that the employer's facility is "TOBACCO-FREE & SMOKE-FREE." Finally, the employe knew it was a violation of the employer's rules to use chewing tobacco. The number of statements regarding the issue in the employer's various work rules, checklists, and signs around the plant, indicate the substantiality of the issue to the employer. Since the employe knew that using chewing tobacco was a violation of the employer's rules, his use constitutes an intentional violation of that restriction. The employe's use therefore constitutes the intentional and substantial disregard by the employe of standards the employer reasonably could expect of its employes.

The commission therefore finds that, in week 28 of 1999, 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 received unemployment insurance in weeks 28 - 32 of 1999, totaling $897.00, 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 (of which $15.00 is dealt with on another decision) 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 as provided in Wis. Stat. § 108.04(13)(f), yet the overpayment also did not result from departmental error. See Wis. Stat. § 108.22(8)(c)2.

DECISION

The appeal tribunal decision is reversed. Accordingly, the employe is ineligible for benefits beginning in week 28 of 1999, and until seven weeks have elapsed since the end of the week of discharge and he has earned wages in covered employment performed after the week of discharge equaling at least 14 times his weekly benefit rate which would have been paid had the discharge not occurred. He must repay $897.00 (of which $15.00 is dealt with on another decision) 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 November 12, 1999
keenajo.urr : 105 : 1 MC 696

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner


NOTE: As indicated above, the commission conferred with the administrative law judge before determining to reverse the appeal tribunal decision in this case. The crux of the administrative law judge's reasoning was that the employe was entitled to a warning that his conduct would lead to immediate discharge (as opposed to progressive discipline leading up to discharge). Generally, the commission agrees with the proposition stated by the administrative law judge in her decision, that employes are entitled to warnings that their performance is unsatisfactory and opportunity to improve that performance, before a finding of misconduct can be sustained. In this case, though, the record indicates that the employe did know his behavior was treated seriously by the employer; based upon the employer's posted notices, the employe also was aware that a first offense would result in his discharge. Under these circumstances, the commission does not believe the employe needed a warning from the employer in order to know that his conduct, if discovered by the employer, would lead to his immediate dismissal.

cc: TREK BICYCLE CORP
1170 UNIVERSAL BLVD
WHITEWATER WI 53190


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