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


JOSEPH E MUSIAL, Employe

ALGOMA LUMBER CO, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99402149GB


On October 1, 1999, the Department of Workforce Development issued an initial determination which held that the employe had been discharged for misconduct for unemployment insurance purposes. The employe filed a timely request for hearing on the adverse determination, and hearing was held on November 3, 1999 in Green Bay, Wisconsin before a department administrative law judge. On November 5, 1999, the administrative law judge issued an appeal tribunal decision reversing 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 approximately a year and a half as a loader operator for the employer, a lumber concern. The employer discharged the employe on June 22, 1999 (week 26), and the issue is whether that discharge was for misconduct for unemployment insurance purposes. The commission concludes that it was, and so reverses the appeal tribunal decision.

In September or October of 1998, the employer's vice president told the employe that the employe's employment was not working out, that the employe's performance was not where he (the vice president) wanted it to be. The employe asked for, and received, a chance to improve his performance and retain his employment.

On March 5, 1999, the vice president told the employe that he had to mix up logs going onto a certain platform (for debarking). Lumber debarkers are supposed to have a mix of small and large logs, which enables them to run the debarking machine more efficiently than can be done with either all large or all small logs. The employe responded that it was good the vice president gave him that instruction, because no one had told him. In fact, previously on the same day, the employer's yard foreman had spoken with the employe about that exact matter: mixing large and small logs.

The employe's work involved operating a loader, loading bark into customers' vehicles. He was supposed to simply dump the bark into the vehicles; instead, on several occasions the employe would get out of his loader and assist the customer in cleaning off the bumpers of the vehicles. The employer regularly told the employe not to clean off the bumpers, that that was the customer's responsibility. On one occasion, after the employe had cleaned off the bumper of the yard foreman's mother, the foreman told him that he was not to assist even her in cleaning off her bumper. The employe therefore was on full notice that he was not to assist any customers in cleaning bark of their bumpers. The incident precipitating the discharge occurred on June 18, when a woman came to the yard for a load of bark. When the employe finished loading the bark, he got out of his loader and cleaned off the back of her truck. While doing so, he told the following joke: "Do you know why they can't bury blondes? They can't get their legs together to fit them in the casket." When the customer entered the office to pay for her bark, she said in effect that she should get the bark for free, considering the joke she had just had to listen to. Indeed. When the employer's vice president learned of the woman's complaint, he investigated the matter and determined that the employe should be discharged for telling the joke, lying in March about not having been told about mixing logs, and continually failing to follow the employer's directive that he stay in his loader and not clean bark off customers' vehicles.

Misconduct for unemployment insurance purposes is the intentional and substantial disregard by an employe of standards an employer reasonably may expect of its employes. When taken together, the employe's various failures meet this standard. First, the joke the employe told to the customer is patently offensive and may in itself come close to constituting misconduct for unemployment insurance purposes. Second, while the employe's lying about not having received instructions in March might not, by itself, constitute misconduct, yet it certainly contributes to an overall finding thereof. Third, repeated failure to follow directives from an employer can constitute insubordination which, in turn, can constitute misconduct for unemployment insurance purposes. In this case, the employe was told repeatedly not to assist customers in cleaning bark off their vehicles, and knew that he was not to do so even when the customer was his yard supervisor's mother. His failure to heed these directives from the employer was insubordination. These factors, when taken together, are the intentional and substantial disregard of an employer's interests which is misconduct for unemployment insurance purposes.

The commission therefore finds that, in week 26 of 1999, the employe was discharged for misconduct for unemployment insurance purposes. The commission also finds that the employe was paid unemployment insurance in weeks 41 of 1999 through 5 of 2000, totalling $3,124 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 that sum to the Unemployment Reverse 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 it also was not the result of department error. See Wis. Stat. § 108.22(8)(c)2. Specifically, the overpayment is the result of a difference in judgment between the administrative law judge and commission as to the significance of the employe's various failures.

DECISION

The appeal tribunal decision is reversed. Accordingly, the employe is ineligible for benefits beginning in week 26 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. The employe must repay $3124 to the Unemployment Reserve Fund. Department form UCB-700, issued on November 10, 1999, is set aside.

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 February 24, 2000
musiajo.urr : 105 : 6    MC 630.01  MC 640.03  MC 610.25

/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. The administrative law judge did not believe the employer's proof regarding the March 5 directive to the employe about mixing up logs was sufficient. The yard foreman testified that he had so instructed the employe, but that he could not remember whether it had been on March 5. The employer's vice president testified, and admittedly this was hearsay, that the yard foreman had so instructed the employe on March 5, before the vice president spoke with the employe about the same matter. This evidence, taken together, in the commission's view is sufficient to establish that the yard foreman did indeed speak with the employe about mixing logs on March 5.

The administrative law judge also reasoned that the vice president did not know until after the discharge that the employe had been lying about some of the events which occurred on June 18. It is true that the vice president apparently did not know that the employe had left his loader on June 18, but the vice president did know of the offensive joke the employe had told the customer. Given the remaining factors in the case, the commission concludes that that was sufficient.


Appealed to Circuit Court.

[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]