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


CLINTON P BUSS, Employe

TOWN OF WILSON SHEBOYGAN CO, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99401227SH


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 two years and eight months as a part-time utility worker for the employer, a town government. His last day of work was April 17, 1999 (week 16). The employer discharged the employe from his employment on April 19, 1999 (week 17), for alleged insubordination and rude behavior.

The issue is whether the employe was discharged for misconduct connected with his work.

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 employer alleged that on Saturday, April 17, 1999 (week 16), the employe was rude to a town resident who came to the dump to dispose of trash. However, the employer presented no firsthand evidence which would establish that the employe was rude to the town resident. Thus, the commission will not consider this incident in determining whether the employe's actions amounted to misconduct connected with his work.

The employe was also discharged for rudeness to a town supervisor. The town supervisor came to the dump and recycling center around noon on April 17. The employe recognized the town supervisor and began to complain to the supervisor about not getting 600 hours of work per year. If a town employe worked 600 hours or more, he or she became eligible for retirement benefits. The employe criticized the town supervisor about his not knowing the rules of the dump. The employe asked how the supervisor could expect citizens to know and abide by the rules when the supervisor did not. The employe told the town supervisor to "get the hell off the town property." When the town supervisor walked to a rear area of the yard where there was a burning pit. The employe told the supervisor not to go back there and to leave the dump.

The employe may have been unhappy about his raise and the number of hours he was working, and it was to be expected that he might voice his concerns to the town supervisor. However, the employe's manner was disrespectful and insubordinate. The employe "tore into" the town supervisor at a public place. His comment that the supervisor should leave the dump clearly went beyond voicing a legitimate concern about his wages and hours. The employe then followed the town supervisor to the back of the dump and continued to tell him to leave. It was within the town supervisor's rights to inspect the back area of the dump. While this was a single incident, the seriousness of the employe's behavior demonstrated such a wilful and substantial disregard of the employer's interests as to amount to misconduct connected with his employment.

The commission therefore finds that in week 17 of 1999 the employe was discharged for misconduct connected with his employment within the meaning of Wis. Stat. § 108.04(5), but that as of week 30 of 1999 7 weeks have elapsed since the week of discharge and he has earned 14 times his weekly benefit rate.

The commission further finds that the employe was paid benefits for weeks 18 and 19 and 25 through 29 of 1999, amounting to a total of $362.00 for which he was not eligible and to which he is not entitled, within the meaning of Wis. Stat. § 108.03(1). Pursuant to Wis. Stat. § 108.22(8)(a), 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 weeks 17 through 30 of 1999.

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 January 28, 2000
busscl.urr : 145 : 7  MC 640.05

/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. He thought that the town supervisor's version may have been the more accurate, although he was not sure that the employe used the word "hell." He further believed that the town supervisor did have the authority to check out the back of the dump. The ALJ believed that the employe was angry because he was working less than 600 hours. The commission agrees with the ALJ's credibility determination, however, the commission determines that the employe's actions amounted to misconduct connected with his employment.

cc: ATTORNEY KATHIE Z NORMAN
HOPP POWELL RAFTERY & BAUER


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