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

NATHANIEL D BEAMAN, Employe

KELSEY HAYES CO, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00000305LX

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 for one year and three months as a set-up person for an injection molding business. His last day of work was December 21, 1999 (week 52), when he was discharged.

During the last six months of his employment, the employe received several warnings. On June 4, 1999, the employe received a written warning for posting an offensive note which the employer considered horseplay. Two weeks later, he received a three-day suspension for horseplay with a forklift. The employe was warned that another act of horseplay would result in discharge. No further horseplay occurred. On July 22, 1999, the employe received a written warning for absenteeism in a six month period. No further absenteeism occurred after the warning.

On November 5, 1999, all the set-up people on all three shifts received a warning following a mixing error that caused rejected parts. The employer was unable to determine who was responsible. The warning stated that workers should exercise greater care in mixing. No statement about the consequences of another error was stated in the warning. On December 21, 1999, the employe received a warning for failing to mix concentrate into a product. The employe denied he was responsible. The employer was confident that the error occurred on his shift and that he was responsible. The employe was then discharged according to apparent employer policy which provides for discharge after a certain number of warnings in a year without regard to their content. This policy is not stated in any of the warnings the employe received nor was the employe ever told his job was in jeopardy based on the accumulation of warnings.

The issue is whether the employe's 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 argues that he was not on notice that his job was in jeopardy after the November warning nor did the employer prove that its policy provided for discharge following a fourth warning. The commission agrees. Two employer witnesses give contradictory accounts of the policy and the employe denied knowledge of it. Moreover, the warnings the employe received make no allusion to this policy but instead appear to provide for progressive discipline within the type of offense. The employe did not repeat the horseplay after he was suspended nor the absenteeism after he was warned. In this regard he demonstrated a regard for the employer's interests by conforming his behavior to the employer's expectations. The November warning regarding errors put the employe and his co-workers on notice to be careful but the employer neither proved nor asserted that the employe was responsible for that error. The warning itself provides for no penalty should another mixing error occur. The commission accepts that the employe was responsible for the final December mixing error, but this act of negligence was his first offense of this kind and did not demonstrate any gross neglect.

Generally, the commission does not find misconduct based on a series of unrelated warnings where the conduct disciplined stops following the discipline. Thereafter the employe received a general warning about mixing errors that placed him on notice that he needed to exercise care in mixing. However, the record does not support the conclusion that this warning placed him on notice that any future mixing error would result in his discharge. The employer only proved the employe responsible for a single instance of negligence. While the employe appears to be less than a model employe, the employer has not proved that his conduct was in deliberate or substantial disregard of the employer's interests.

The commission therefore finds that in week 52 of 1999, the employe was discharged but that the discharge was 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 52 of 1999, if he is otherwise qualified.

Dated and mailed August 2, 2000
beamana.urr : 178 : 2  MC 688.1

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

In his petition for commission review, the employe disputes the ALJ's finding that he was on notice after the November warning to pay closer attention to his work or he would be fired. The ALJ found the employe's error went beyond mere negligence based on this awareness of the consequences. For the reasons stated above, the commission disagrees with this argument and therefore reverses the appeal tribunal decision. The commission does not reach a different assessment of witness credibility but arrives at a different conclusion when applying the law to the facts.

PAMELA I. ANDERSON, COMMISSIONER (dissenting):

I am unable to agree with result reached by the majority herein and I dissent. Sharon Johnson testified "The 11/11 warning was triggered by the employe's failure to mix in the concentrate properly. The parts went transparent because of the improper mixing. The employe was not the only worker who got a warning for this incident. It went through all three shifts. The parts were light yellow. But they were supposed to be white. We had to waste one barrel per shift. When I looked at the mixing area, I found two extra bags of concentrate, and found that we were missing 2-3 bags of base material. This meant that there was too much base material used for the amount of concentrate use. Three material handlers, one from each shift in the section where the incident happened received warnings as a result of this incident. There were other material handlers on the employe's shift, but they had separate areas where they mixed their materials. The material handlers on "team b" were warned. This incident occurred on 11/11. I questioned all three handlers. Two of them said they could have forgotten a bag on concentrate.The employe thought he might have forgotten one of the concentrates, but he was not sure." With regard to the last incident, the employe testified " I don't think I made the mistake because I worked there for a year and I did a good job. I don't think it was possible that I forgot to add the concentrate." The employer had checked to see if he had put the concentrate in the barrel but it had not been mixed up because the parts were transparent and they should have been black. I don't find that very convincing since the employer checked to make certain that there was no concentrate in the barrel.

The employe was discharged after warnings on 6/4/99 for horseplay, a suspension on 6/18/99 for horse play, 7/22/99 for attendance, 11/11/99 for failure to mix the concentrate correctly, and discharged for failure to mix a concentrate into the product on December 21, 1999. He was discharged for four warnings within one year. The personnel person testified an employe could be discharged for three warnings within a year so if the employer did not follow its own rule it was not to the detriment of the employe because he received more chances.

For these reasons, I would affirm the administrative law judge's decision.

___________________________________________
Pamela I. Anderson, Commissioner

cc: LUCAS BODY SYSTEMS

ATTORNEY KRIS BURGESS
WARD BILSKI & SCHUMBERG

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