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

ROSIE L PIERCE, Employe

THE KELCH CORP, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00602402MW

On March 3, 2000, the Department of Workforce Development issued an initial determination which held that the employe was discharged for misconduct connected with her employment. The employe filed a timely request for hearing on the adverse initial determination, and hearing was held on April 11, 2000 in Milwaukee, Wisconsin before a department administrative law judge. On April 25, 2000, the administrative law judge issued an appeal tribunal decision affirming the initial determination. The employe 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, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked over a year and a half as a press operator for the employer, a plastic injection molding concern. Her last day of work was February 15, 2000 (week 8), at which time the employer discharged her. For the reasons stated below, the commission cannot conclude that the discharge was for misconduct for unemployment insurance purposes, and so reverses the appeal tribunal decision.

The employer had disciplined the employe in March of 1999, for having engaged in "screaming, yelling and vulgar language" in the workplace. The employe received a written warning for that conduct.

On February 11, 2000, the employe became involved in a dispute with a co- worker, lost her temper, and was heard screaming and yelling and using profanities. The employer's plant manager investigated the matter, determining that both individuals had been swearing at each other, and imposed a two-day suspension upon the employe (Friday, February 11 and Monday, February 14). The employe was to return to work on February 15.

The employe returned to work on February 15. At the beginning of her shift, the plant manager told her that the employer wanted no more complaints about her, that if anything happened she would be suspended. At that point, the employe went to work. Approximately an hour later, the employe was called back into the office and was discharged. The employer indicated that the initial assessment of suspension was a mistake, that the plant manager would have discharged the employe on February 11 had he remembered the March 1999 discipline of the employe.

Misconduct for unemployment insurance purposes is the intentional and substantial disregard by employes of standards an employer reasonably may expect of its employes. The employe's two instances of loss of temper and vulgarity in the work place easily could meet this standard. An intervening factor compels a finding, however, that the discharge was not for misconduct for unemployment insurance purposes. That intervening factor was the employer's suspension of the employe, coupled with the employe's serving of the suspension and return to work after the suspension. Once discipline has been imposed and served, subsequent to the serving of the discipline and return to work there must be culpable behavior on an employe's part in order to sustain a finding of misconduct. Such culpable behavior of course is lacking here, since the impetus for the discharge was the employer's recognition of the mistake of having imposed only a suspension upon the employe for the February 11 incident. That circumstance is unfortunate, but it does not overcome the general principle just stated. The commission's position in this matter is also consistent with that of the Department of Workforce Development, as stated in its Unemployment Insurance Manual: "A disciplinary suspension, given as punishment for prior acts, without any subsequent misconduct, does not substantiate a later discharge for misconduct." Vol. 3, Part VII, ch. 2, p. 23.

The commission therefore finds that, in week 8 of 2000, the employe was discharged but not for misconduct connected with her work for the employer, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The appeal tribunal decision is reversed. Accordingly, the employe is eligible for benefits beginning in week 8 of 2000, if she is otherwise qualified.

Dated and mailed May 31, 2000
piercro.urr : 105 : 6   MC 688.1

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

NOTE: The commission did not confer with the administrative law judge before determining to reverse the appeal tribunal decision in this case. The commission's reversal is not based upon a differing credibility assessment from that made by the administrative law judge. Rather, as a matter of law, once the employe served the suspension and returned to work, subsequent failures on her part were necessary to sustain a finding of discharge for misconduct.

cc: THE KELCH CORP

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