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


JOHN W KNEUBUHLER II, Employe

OSCAR MAYER FOODS CORP, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 96001045MD


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 about 25 years for the employer, a meat processor. His last day of work was January 11, 1996 (week 2)

On January 11, 1996, the employe was speaking to a worker, regarding meat that his section was having a hard time slicing. The employe indicated that it was not his job to move the meat into the area. The employe was informed that it was his job and that he was responsible for lining the meat up. The employe then left. The other worker discussed the situation with the employe's supervisor. The employe overheard the conversation, and burst in, demanding to know how the supervisor knew about these things. The employe said that the supervisors were trying to conjure something up and were after him. Another supervisor walked in and said that the employe was getting loud, and it sounded like insubordination. The employe told her that this had nothing to do with her and to stay out of his business. The employe told his supervisor that this was all a bunch of junk and that the other worker was lying. The employe's supervisor told the employe to listen, and the employe said "No, you listen to me because you don't know what the fuck you're talking about." The employe spoke loudly. The employe was then told that his employment was suspended for insubordination and security escorted him from the employer's premises. He was discharged on January 16, 1996 (week 3).

The issue which must be determined is whether the employe's discharge was for misconduct connected with his work. The employer contended that the employe's loud and abusive manner was insubordinate and amounted to misconduct connected with his work. The commission must agree. The employe made an assumption with regard to the conversation that he overheard and then would not listen to the explanation of his supervisor. He was loud, disrespectful and belligerent. While workers might get upset with things that happen at the work place, in this case, the employe's response was unreasonable and abusive to the employer's supervisory personnel, and amounted to such a wilful and substantial disregard of the employer's interests as to constitute misconduct.

The commission therefore finds that in week 2 of 1996, the employe was discharged for misconduct connected with his work, within the meaning of sec. 108.04(5), Stats.

The commission further finds that the employe was paid benefits for each of weeks 3 through 25 of 1996, amounting to a total of $4634 for which he was not eligible and to which he is not entitled, within the meaning of sec. 108.03 (1), Stats.

The commission further finds that waiver of benefit recovery is not required under sec. 108.22 (8)(c), Stats., because although the overpayment did not result from the fault of the employe as provided in Wis. Stat. 108.04 (13)(f), the overpayment was not the result of a department error. See section 108.22 (8)(c)2, Stats.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employe is ineligible for benefits beginning in week 2 of 1996 and until seven weeks have elapsed since the end of the week of discharge and 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 is required to repay the sum of $4634 to the Unemployment Reserve Fund. The initial benefit computation (UCB-700) issued on January 20, 1996, is set aside. If benefits become payable based on work performed for other covered employers a new computation will be issued as to those benefit rights

Dated and mailed July 12, 1996
kneubjo.urr : 145 : 3  MC 668

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ David B. Falstad, Commissioner


MEMORANDUM OPINION

The commission discussed witness credibility and demeanor with the ALJ who indicated that the employe was an excitable and emotional individual, and that this was simply part of his personality. While it is true that it may be more difficult for an excitable individual not to lose his temper, in this case the employe's behavior was extreme an unjustified considering the circumstances.

cc: Sharon Capaccio
Oscar Mayer Foods

Attorney Scott P Hassett
Lawton & Cates SC


Appealed to Circuit Court.  Affirmed May 28, 1997.   Appealed to the Court of Appeals.  Affirmed in an unpublished decision February 12, 1998.

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