Fitzgerald v. Globe-Union, Inc.

• Decision Date: 06 June 1967
• Docket Number: INC,GLOBE-UNIO
• Citation: 35 Wis.2d 332,151 N.W.2d 136
• Parties: , 26 A.L.R.3d 1346 Vera FITZGERALD, Appellant, v., et al., Respondents.
• Court: Wisconsin Supreme Court

Page 136

151 N.W.2d 136

35 Wis.2d 332, 26 A.L.R.3d 1346

Vera FITZGERALD, Appellant, v. GLOBE-UNION, INC., et al., Respondents.

Supreme Court of Wisconsin.

June 6, 1967.

Harvey L. McCormick, Milwaukee, for appellant.

Arnold J. Spencer, Chief Counsel, and Max J. Peltin, Madison, for indus. comm.

BEILFUSS, Justice.

Two issues are presented:

(1) Could the industrial commission reasonably conclude that the employee's conduct constituted 'misconduct' within the meaning of sec. 108.04(5), Stats., so that the employee would be ineligible for unemployment compensation benefits accrued with respect to the discharging employer?

(2) Was the appellant afforded a fair hearing before the appeal tribunal?

The employee contends that the industrial commission cannot find her guilty of 'misconduct' under sec. 108.04(5), Stats., in the absence of a showing that she intentionally mislabeled the items which were wrongly stamped.

The scope of the court's review of determinations made by the industrial commission is a narrow one. The legislature has provided that findings of fact made by the industrial commission acting within its powers and in the absence of fraud are conclusive on the courts. Secs. 102.23(1) and 108.09(7), Stats. When the question of fact involves a person's acts or his intent in doing such acts, and the credible evidence and the reasonable inferences therefrom would support any one of two or more findings, the finding of the industrial commission is conclusive. Liebmann Packing Co. v. Industrial Comm. (1965), 27 Wis.2d 335, 339, 134 N.W.2d 458.

The determination of whether an employee's conduct is 'misconduct' under sec. 108.04(5), Stats., is a question of law, subject to the following qualification:

'If it is true that a determination by the commission that there has been misconduct under the standard prescribed by the statute is a conclusion of law, it does not follow that every such determination is open to an independent redetermination by this court. If several rules, or several applications of a rule are equally consistent with the purpose of the statute, the court will accept the agency's formulation and application of the standard.' Milwaukee Transformer Co. v. Industrial Comm. (1964), 22 Wis.2d 502, 510, 126 N.W.2d 6, 11.

Thus if the commission's legal conclusion, such as a determination of misconduct, is reasonable this court will sustain in commission's view even though an alternative view may be equally reasonable. Tecumseh Products Co. v. Wisconsin Employment Relations Board (1964), 23 Wis.2d 118, 129, 126 N.W.2d 520.

With this standard of review in mind, we examine the principal issue in the case at bar. The facts in this case are not in dispute. The findings of fact made by the appeal tribunal, and affirmed by the industrial commission, are supported by credible evidence and are conclusive. The only question is whether the conduct of the employee as found by the tribunals below could constitute 'misconduct' within the meaning of sec. 108.04(5), Stats.

The term 'misconduct' for purposes of sec. 108.04(5), Stats., is not defined in the statutes. In the leading case, Boynton Cab Co. v. Neubeck (1941), 237 Wis. 249, 296 N.W. 636, this court defined misconduct in light of the background and purposes of the Wisconsin Unemployment Compensation Act as follows, at pp. 259--260, 296 N.W. at p. 640:

'The application of these principles leads to the conclusion, in view of the matters to be taken into consideration, as stated above, that the intended meaning of the term 'misconduct,' as used in sec. 108.04(4)(a), Stats., 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 Boynton test of misconduct has been approved by this court a number of times and remains vital to this day. Cheese v. Industrial Comm. (1963), 21 Wis.2d 8, 16--17, 123 N.W.2d 553; Milwaukee Transformer Co. v. Industrial Comm., supra, 22 Wis.2d p. 511, 126 N.W.2d 6; Liebmann Packing Co. v. Industrial Comm., supra, 27 Wis.2d p. 339, 134 N.W.2d 458.

The record reveals that the employer had plant rules agreed to by the union as a bargaining agent for the employees. The rules were readily available to all employees. One of the rules related to 'negligence or gross inefficiency on the job.' The rule provided for a four-step procedure: (1) first warning; (2) final warning; (3) disciplinary layoff; (4) discharge.

An exhibit in the record indicates the employee was given her first warning for poor work in January, 1964 (no testimony was introduced regarding this incident).

In September, 1964, a second notice was given because a lot of 25,000 items was poorly stamped. The entire lot of 25,000 had to be inspected by hand. About 2,500 were illegibly stamped and had to be sandblasted and then restamped. It was necessary to sandblast the stamps off the items because they were baked on. If an error is detected promptly it can be removed by a chemical solution which was readily available. The stamping machine is not a part of a constantly moving assembly line process. It is activated by the operator and can be stopped at will to check the stamp.

In January, 1965, the employee was given a third notice and a one week disciplinary layoff. On this occasion she incorrectly stamped 6,000 items although the correct stamp was clearly written on the master card. At a conference between the foreman, the union steward, and the employee she admitted she used the wrong stamp. All 6,000 items were scrap.

On March 23, 1965, she was given a fourth notice and discharged from her employment. She again admitted in a conference among the chief steward, the steward, the foreman, and herself that she used the wrong stamp and did not discover her error.

While the violation of a work rule may well justify the discharge of an employee, such a violation does not necessarily amount to misconduct for unemployment compensation purposes. ¹ The misconduct must be within the definition set forth in Boynton Cab Co. v. Neubeck, supra.

In the definition set forth above it is stated: '* * * 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 four incidents referred to were more than inefficiency and unsatisfactory conduct; the employee did have the ability and capacity to do the work as demonstrated by almost three years of satisfactory performance; her negligence was not an isolated...