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


DONALD L BARAL JR, Employe

UNITED WATER SERVICES MILWAUKEE LLC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99603726MW


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's at the original and remand hearing. Based on its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked for a little over a year as an electrician for the employer, a company that manages waste water treatment facilities. His last day of work was April 27, 1999 (week 18). He was discharged the following day for refusing a job assignment and leaving early on April 27.

The supervisor of field operations assigned the employe to work at an underground location on the morning of April 27. The supervisor assigned a second person, who was a machinist, to work with the employe as "top man." A "top man" stands above the open manhole while the electrician works. His job is to observe the electrician and assist the electrician if there is any trouble. The employe replied that it was not going to happen and began walking away. He went to the supervisor's office and turned in his keys and beeper. The supervisor asked the employe if he was quitting, to which he responded that he did not know what he was doing, but just needed to get out of there. He left work about 8:30 a.m. although he was scheduled to work until 3 p.m. When the employe got home he called the employer and requested the paperwork to apply for an FMLA leave.

The employe was being treated for chronic depression during the period at issue. His illness manifests itself in irritability and an anger control problem. The employe objected to the person assigned to work with him as "top man" based on previous bad experiences. On one occasion, the "top man" left the manhole and was ten yards away. He should have stayed right at the manhole for the employe's safety. In a second incident, the same person removed the ladder from the manhole before the employe had a chance to get out. When the employe was notified of the "top man", he became very frustrated and was in danger of losing his temper due to his medical condition. He chose to leave the work site immediately and then called the employer to request FMLA papers. The following day the employer notified the employe he was discharged for refusing an assignment and for job abandonment.

The issue is whether that discharge was 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 employe had a medical condition which caused irritability and an anger control problem. He became very frustrated and was in danger of losing his temper after he was notified of his "top man." He chose to leave the work site. The employer was aware of his "stress condition" and to accommodate it had permitted the employe to walk it off or talk out his frustrations in the past. While the employer clearly wished the employe to chose an alternative to walking off the job when dealing with these symptoms, his own testimony and his medical documentation support his contention that he could not control himself on his last day of work and accordingly left the job site.

Since the employe's medical condition contributed to his inability to act reasonably when he was dissatisfied with his top man, the commission concludes that the employe's conduct was not a deliberate and substantial disregard of the employer's interests. Therefore no misconduct is shown.

The commission therefore finds that in week 18 of 1999, the employe was discharged but not for misconduct connected with his work for the employer, 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 18 of 1999 if he is otherwise eligible.

Dated and mailed March 14, 2000
baraldo.urr : 178 : 5    MC 640.03 MC 688

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

The commission did not consult with the ALJ prior to reversing. The commission bases its reversal on the undisputed medical evidence, unavailable to the ALJ, that the employe's medical condition prevented him from conforming his behavior to the employer's expectations. As such the commission cannot conclude that the employe's conduct was deliberate or intended to harm the employer's interests.

 

PAMELA I. ANDERSON, COMMISSIONER (Dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. While the employe suffers from bi-polar disease, I do not believe that he has shown that he could not have controlled himself on his last day of work. The employe didn't just walk out, he told the employer "it wasn't going to happen" in response to his assignment and offered the opinion that a machinist should not be assigned to him as a top man because it was not within the scope of a machinist's work. He was told he could file a grievance. He told the supervisor of field operations that the other supervisor could come in the locker room if he wanted to talk to him. Then he turned in his keys and beeper and left.

At the remand hearing the employe brought an opinion of Dr. Zblewski who indicated that "I do know that he has had chronic problems with irritability and anger. I believe this may have contributed to his walking off the job." Dr. Zblewski had treated him until 1994 and then again after he was fired. His treating doctor also filled out a form saying "Irritible/anger control problem". Both doctors indicated he could do his job on the day he walked off work. While the employe had had bad experiences with the machinist assigned to the employe, he had never reported this problem to the employer. He didn't even mention to the employer on the last day that he considered it to be a safety problem.

After reviewing the record, I do not believe that the employe was unable to respond to his employer's request to talk about the situation. I would affirm the administrative law judge's decision.

________________________________________
Pamela I. Anderson, Commissioner

cc: UNITED WATER SERVICES MILWAUKEE

LINDA BARAL


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