Wisconsin Labor and Industry Review Commission --
Summary of Wisconsin Court Decision relating to Unemployment Insurance

Subject: James D. Schwichtenberg  (Hrg. No. 95004396MD) v. Labor and Industry Review Commission and Oscar Mayer Foods Corporation, Case 96-CV-1433 (Wis. Cir. Ct., Dane Co., February 3, 1997)

Digest Codes: MC 657  MC 663

The employe was a sausage maker. Following receipt of warnings for not following procedures, he was discharged for an incident in which metal contamination (from broken knife blades) was found in a batch of ground meat when the employe had made log entries claiming that he had conducted the required checks of the knife blades after that batch was ground and found no damage to the knives. The employer concluded that he had falsified the log to show that he had made the required checks when in fact he had not. LIRC denied benefits on grounds that the employe was discharged for misconduct. On appeal the employe argued that LIRC erred in "surmising" that he had neglected to make the required knife check.

Held: Affirmed. It was reasonable to infer that the employe had not conducted the check which he claimed he had made after the "second batch" grind, since metal pieces were found in meat ground in that second batch, but not in the following batch. It is difficult if not impossible to reconcile that evidence with the employe’s claims. The choice of the word "surmise" by the commission is not fatal to its determination, which was both reasonable and logical. Failing to conduct the required inspection and then falsifying the log is not mere negligence or a good faith error in judgment. LIRC’s legal conclusion that this was misconduct, which is entitled to "great weight" deference, is affirmed.

Please note that this is a summary prepared by staff of the commission, not a verbatim reproduction of the court decision.

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