DATED AND FILED
NOTICE
February 12, 1998
Marilyn L. Graves
Clerk, Court of Appeals
of Wisconsin
No. 97-1963
DISTRICT IV
John W. Kneubuhler II,
Plaintiff-Appellant,
v.
Labor & Industry Review Commission, and
Oscar Mayer Foods Corporation,
Defendants-Respondents.
APPEAL from an order of the circuit court for Dane County: GERALD
C. NICHOL, Judge. Affirmed.
Before Dykman, P.J., Vergeront and Roggensack, JJ.
VERGERONT, J. John Kneubuhler appeals an order
affirming the
decision of the Labor and Industry Review Commission that Kneubuhler was ineligible
for unemployment compensation benefits because he had been discharged for
misconduct within the meaning of § 108.04(5), Stats.(1) Kneubuhler argues that we
should give no deference to the commission's conclusion of misconduct and that the
commission erred in concluding that Kneubuhler's behavior constituted misconduct. As
did the trial court, we hold that the commission's conclusion is entitled to great weight
and that it was reasonable. We therefore affirm the trial court.
Kneubuhler was terminated from his employment at Oscar Mayer Foods
Corporation after a verbal altercation with supervisory personnel on January 11, 1996.
The initial determination on his application for unemployment compensation benefits
was that he was not discharged for misconduct. Oscar Mayer appealed that
determination and the administrative law judge (ALJ) decided that, while Kneubuhler
"had demonstrated very poor judgment in his outbursts and accusations toward his
supervisor," he had not engaged in misconduct.(2)
Oscar Mayer appealed the ALJ's decision to the commission, which
reversed. The commission made these findings concerning the incident:
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 overhead 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 commission concluded that Kneubuhler's conduct was loud, disrespectful and
belligerent, and that, "although workers might get upset with things that happen in 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
also stated:
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 and unjustified
considering the circumstances.
Kneubuhler was directed to repay the unemployment compensation benefits he
received.
Kneubuhler petitioned for judicial review of the commission's decision
under § 108.09(7), Stats., and the trial court affirmed. The court concluded that
under
the applicable case law, the commission's decision should be given great weight and
should be sustained if it is reasonable, even if an alternative is equally reasonable. The
court decided that, although Kneubuhler's position that he did not engage in misconduct
was a reasonable conclusion of law, the commission's conclusion of misconduct was
also reasonable and therefore must be affirmed.
On appeal, Kneubuhler's first contention is that this court should not give
the commission's decision any deference because the decision conflicts with the
commission's prior decisions. Specifically, Kneubuhler points to two prior agency
decisions in which, he contends, the commission found no misconduct under similar
circumstances. The commission disagrees, asserting that the great weight deference
standard of review employed by the trial court is the correct one. We agree with the
trial court and the commission that great weight deference is appropriate.
As both parties agree, we review the commission's decision, not that of
the trial court. See Stafford Trucking, Inc. v.
DILHR, 102 Wis.2d 256, 260, 306
N.W.2d 79, 82 (Ct. App. 1981). We must uphold the commission's factual findings if
there is credible and substantial evidence in the record upon which reasonable persons
could rely to make the same findings. Princess House, Inc. v.
DILHR, 111 Wis.2d
46, 54-55, 330 N.W.2d 169, 173-74 (1983); § 102.23(6), Stats. Kneubuhler
does not
challenge the commission's factual findings but instead focuses his argument on the
commission's conclusion that Kneubuhler's conduct constituted misconduct within the
meaning of § 108.04(5), Stats. Whether the facts as found by the commission
constitute misconduct is a question of law. Bernhardt v.
LIRC, 207 Wis.2d 298, 305,
558 N.W.2d 874, 878 (Ct. App. 1996).
Although we are not bound by an agency's conclusions of law, we give
them varying degrees of deference depending on the nature of the determination and the
agency's experience and expertise. Bernhardt, 207
Wis.2d at 305, 558 N.W.2d at 878.
We have held that the commission's conclusion that particular facts constitute
misconduct is entitled to great weight because it is intertwined with factual and value
determinations. See id., citing
Charette v. LIRC, 196 Wis.2d 956, 960, 540 N.W.2d
239, 241 (Ct. App. 1995). Kneubuhler, however, disagrees. He argues that we should
give no deference to the commission's decision because its past decisions are
inconsistent with this one. See UFE v. LIRC, 201
Wis.2d 274, 285, 548 N.W.2d 57,
62 (1996) (de novo review, with no deference to agency, is appropriate when issue is
one of first impression or agency precedent is so inconsistent as to provide no real
guidance).
To resolve this issue, we examine the statute which the agency is charged
with administering. Since 1933, § 108.04(5), Stats., has provided that an
emp1oyee
is ineligible for unemployment compensation benefits if he or she was terminated for
misconduct, but the statute does not define misconduct. See
§ 108.04(5), 1933.
However, our supreme court defined the term decades ago:
[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 the
employer.
.
On the other hand mere inefficiency, unsatisfactory conduct,
failure of 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.
Boynton Cab Co. v. Neubeck, 237 Wis. 249,
259-260, 296 N.W. 636, 640 (1941).
Since 1941, the commission has applied the Boynton Cab
standard to
resolve unemployment compensation benefits disputes when misconduct is alleged.
This standard is phrased in conclusory terms, and, as the trial court aptly noted, "does
not lend itself to bright line rulings" but instead requires a determination that must be
made on a "case by case" basis, based on the facts of each case. Indeed, our decision
to accord great weight to the commission's misconduct conclusions as we did in
Bernhardt is based on this very aspect of the
determination--its fact intensive nature.
The first prior agency decision Kneubuhler brings to our attention as
inconsistent is Wisconsin Industrial Commission, No.
37-C-40 (1938), in which the
commission held that an employee's "rude remark" to a supervisor was not
misconduct.(3)
In the second decision, Vilter Manufacturing Corp. v. Labor and
Industry Review Commission and Argie Fowler Jr., No. 559-728 (Wis.
Cir. Ct.
Milwaukee County June 14, 1982), the commission held that these circumstances did
not constitute misconduct: improper language to a co-worker which was justified under
the circumstances; a "vulgar expression" that "may have [been] directed to [the]
supervisor"; and failure to follow a supervisor's instructions which, the commission
inferred, were made for the purpose of harassing the employee.(4)
The commission counters these two cases with four cases in which circuit
courts have affirmed the commission's conclusions of misconduct in situations involving
use of profanity directed at a supervisor.(5)
We disagree with Kneubuhler that these decisions show a lack of
uniformity in the standard employed by the commission. Wisconsin
Industrial
Commission, No. 37-C-40, was decided before
Boynton Cab Co., but the decisions
show that the commission is applying the Boynton
Cab standard. We also disagree
with Kneubuhler that the commission's decision in this case is based solely on the use
of profanity and that this is inconsistent with Wisconsin Industrial
Commission, No.
37-C-40, and Vilter Manufacturing. As found by the
commission, Kneubuhler's use
of profanity directed at his supervisor was part of an outburst in which he charged that
his supervisors were "conjur[ing] something up and were after him." He also spoke
rudely to another supervisor who tried to quiet him down, and would not listen to what
his supervisor was telling him but persisted in accusing others of lying, all in a loud
voice.
We are not persuaded that this situation is so similar to one "rude
remark" to the supervisor in Wisconsin Industrial
Commission, No. 37-C-40, or the
"vulgar expression" that "may have [been] directed to [the] supervisor" in
Vilter
Manufacturing as to constitute an inconsistent application of the
misconduct standard.
Rather, the two decisions cited by Kneubuhler and the four cited by the commission
demonstrate the variety of factual situations in which the commission must apply the
misconduct standard and the difficulty in formulating specific rules, even for certain
categories of situations, such as those involving profanity directed at supervisors. This
is precisely the reason why we accorded great weight to the commission's conclusions
on misconduct. See Bernhardt, 207 Wis.2d at 305,
558 N.W.2d at 878.
In addition, the requirements for great weight deference used in
UFE
Inc.(6) are met in this case.
The legislature has charged the commission with
administering § 108.04(5), Stats., and the commission has long-standing
experience in applying
the Boynton Cab standard. Particularly given the
conclusory wording of the standard and the
variety of factual situations in which the standard must be applied, deferring to the
commission's
decision on what constitutes misconduct promotes uniformity and consistency in the
application of
the standard. See UFE, 201 Wis.2d at 284, 548
N.W.2d at 61.
We hold that the commission's conclusion that Kneubuhler engaged in
misconduct is entitled to great weight. We therefore must sustain its conclusion if it is
reasonable, even if another conclusion on these facts would be more reasonable. See
UFE, 201 Wis.2d at 287, 548 N.W.2d at 62. Like the trial
court, we acknowledge that
Kneubuhler's misconduct interpretation as applied to these facts is reasonable, but we
too, conclude that the commission's conclusion is reasonable and therefore must be
affirmed.
Misconduct includes "deliberate violations or disregard of standards of
behavior which the employer has the right to expect of his employee."
Boynton
Cab Co., 237 Wis. at 259-60, 296 N.W. at 640. The commission could
reasonably
decide that Kneubuhler's conduct was a deliberate disregard of the standards of
behavior Oscar Mayer has a right to expect from its employees. It could also
reasonably decide that, even if an employee believes his supervisor is being given
inaccurate information about his work and finds this upsetting, an employer has a right
to expect that the employee will not be belligerent, disrespectful and use profanity
toward supervisory personnel.
Kneubuhler argues that the ALJ's findings and analysis were correct, not
the commission's. However, we review the decision of the commission, not that of the
ALJ; the commission has the ultimate responsibility for making findings of fact and
conclusions of law. See Anheuser Busch, Inc. v. Indus.
Comm'n, 29 Wis.2d 685,
691, 139 N.W.2d 652, 655 (1966). The commission fulfilled its obligation to confer
with the ALJ and provided an explanation for any disagreement it had with the ALJ's
factual findings. See Carley Ford, Lincoln, Mercury v.
Bosquette, 72 Wis.2d 569,
575, 241 N.W.2d 596, 599 (1976).
In any event, in this case there is no significant discrepancy in the facts
as found by the ALJ and those found by the commission; the latter are simply
somewhat more detailed.(7) The significant
difference between the two decisions is the
conclusion each reaches on whether Kneubuhler's conduct constituted misconduct.
However, the commission is not bound by the ALJ's conclusion of law and need accord
it no deference, see Carley, 72
Wis.2d at 576, 241 N.W.2d at 600. And the ALJ's
conclusion favoring Kneubuhler does not shift our focus from the reasonableness of the
commission's conclusion of law. The ALJ's conclusion may demonstrate that
Kneubuhler's position is also reasonable, but, as we have already stated, that is not the
inquiry before us.
Kneubuhler also argues that the record shows that use of
profanity at
Kneubuhler's workplace was common and that the commission's failure to take this
into account was error. Once his conduct is put in this proper context, Kneubuhler
contends, it is at most unsatisfactory conduct or an error in judgment or
discretion--conduct specifically excluded from misconduct in Boynton Cab
Co. See
Boynton Cab Co., 237 Wis. at 260, 296 N.W. at 640. We
have carefully reviewed the
record of the hearing. There was testimony about the use of profanity at the plant.
Virginia Johnson, assistant human resources manager, acknowledged that foul language
was not uncommon in this workplace, but also added that she was not saying it was
acceptable. Kneubuhler testified that the language he used in this incident was not
unusual "on the floor" and that he had "heard worse language used by supervisors."
However, the use of profanity in general among employees does not make it
unreasonable to consider profanity directed at a supervisor in the circumstances of this
case to be misconduct.
Similarly, Kneubuhler's general allusions to supervisors using profanity
on other occasions does not make the commission's conclusion about Kneubuhler's
conduct in this situation unreasonable. There was no testimony that on this occasion
Kneubuhler was provoked by hostile or profane language directed at him: he became
angry when he overheard the operations supervisor make what he believed were
inaccurate statements about his work to his supervisor. The commission could
reasonably conclude that the very general and brief testimony on the use of profanity
in other situations at this workplace was irrelevant to its evaluation of Kneubuhler's
conduct. We also observe that it was not simply the use of profanity directed at his
supervisor that the commission found to constitute misconduct: that was one aspect of
his conduct, which was disrespectful and belligerent in other ways as well.
Finally, Kneubuhler argues that the commission erred in not taking his
twenty-seven years of employment at Oscar Mayer into account, and that this one
incident, viewed in the context of his long work history, does not justify the label of
misconduct, even though it may be a violation of a work rule and justify discharge. We
agree with Kneubuhler that violation of a work rule that justifies discharge does not
necessarily amount to misconduct under § 108.04(5), Stats. See
Consolidated
Constr. Co. v. Casey, 71 Wis.2d 811, 238 N.W.2d 758 (1976). We
also agree that the
employee's history with the employer may, depending on the circumstances, be part of
a reasonable analysis of what constitutes misconduct. However, we conclude that the
commission could reasonably view Kneubuhler's conduct on this one occasion to meet
the Boynton Cab standard, in spite of his long period
of employment with Oscar
Mayer. We also disagree with Kneubuhler that his conduct cannot reasonably be
viewed as misconduct under § 108.04(5) because he did not touch or threaten
anyone.
It is reasonable to interpret "the standard of behavior which the employer has a right
to expect" by its employees toward their supervisors as encompassing more than the
absence of threats or physical contact.
In summary, this may be a case where another reasonable decision maker
could decide that Kneubuhler had not engaged in misconduct under § 108.04(5),
Stats.
However, we are persuaded that the commission's decision was reasonable and, given
our standard of review, we therefore affirm.
By the Court.--Order affirmed.
Not recommended for publication in the official reports.
1 Section 108.04(5), Stats., provides in part:
(5) DISCHARGE FOR MISCONDUCT. An employe whose
work is terminated by an employing unit for misconduct connected
with the employe's work is ineligible to receive benefits until 7
weeks have elapsed since the end of the week in which the
discharge occurs and the employe earns wages after the week in
which the discharge occurs equal to at least 14 times the employe's
weekly benefit rate under s. 108.05 (1) in employment or other
work covered by the unemployment compensation law of any state
or the federal government.
2 The ALJ made these findings:
On January 11, 1996, the employe was questioned by one
of the employer's operations supervisor about a meat batch that
was improperly cooked. The employe indicated that it was not his
fault. The operations supervisor reported the situation with the
meat to the employe's immediate supervisor. The employe entered
the office where the meeting was taking place, and complained in
a loud voice that he the supervisor was lying and that he was being
harassed and retaliated against for filing complaints and grievances
against the employer. The supervisor attempted to explain the
purpose of the discussion but the employe stated that the supervisor
"didn't know a damn thing". The employe was then told that his
employment was suspended for insubordination and he was
escorted from the premises by security personnel. On January 16,
1995, the employer discharged him from his employment.
The ALJ also rejected Oscar Mayer's contention that Kneubuhler had violated its break
policy that same day. The break policy is not an issue on this appeal.
3 The nature of the remark and the surrounding
circumstances are only briefly described
in the commission's decision in Wisconsin Industrial
Commission, No. 37-C-40 (1938):
The employe, seventy-four years of age, had worked for
the employer as night foreman for twenty-seven years. About four
weeks before his discharge the employer installed a new machine
in the plant. The employe's crew worked with this machine, and
he was instructed to see that it was washed at the end of the night
shift.
The employe failed to wash the machine as instructed and
this failure was called to his attention on various occasions. On the
day before his discharge he was again told by the foundry
superintendent to wash the machine when his shift was completed.
The employe replied with a rude remark. He was discharged when
he reported for work the following day.
The employe was not discharged for his failure to wash the
machine, but was discharged solely because of his remark. While
the remark was of a rude and vulgar nature, its use, under the
circumstances, did not constitute misconduct.
4 The complete description of the commission's findings, as
related by the county court,
are:
The Commission held that based on conflicting
testimony, it was not established the employe directed improper
language to co-workers except on one occasion which was
justified. On that occasion, the co-worker was extremely negligent
and could have seriously injured the employe. The language used
was not uncommon in factory areas. He did not disobey the
employer's rule regarding cleaning up and changing clothes early.
The Commission also found that in April of 1980 the
employe may have directed vulgar expression to his supervisor.
This allegedly occurred after he had received permission to leave
work in the afternoon to take his wife home from the hospital but
was subsequently given a three-day disciplinary layoff for failing
to return to work for about one and one-half hours.
The Commission also found that in December, several
days before he was discharged, the employe failed to follow
instructions from his supervisor. The instructions were given at the
close of an angry grievance session on a grievance the employe
had filed against the supervisor. It was inferred that the instruction
at this grievance meeting and in April of 1980 were made for the
purpose of harassing the employe.
Although the employe's actions on occasion showed poor
judgment, his actions did not under the circumstances evince a
wilful or substantial disregard of the employer's interests or of the
standards of behavior which the employer had a right to expect of
him.
Vilter Mfg. Corp. v. LIRC and Argie Fowler
Jr., No. 559-728 (Wis. Cir. Ct. Milwaukee
County Jun. 14, 1982).
5 Reilly v. Aluminum Goods Mfg.
Co., (Wis. Cir. Ct. Dane County Feb. 8, 1954), 11
Wisconsin Unempl. Ins. Repts. (CCH) ¶8221 (APP-5) (court affirmed commission
conclusion that
employe's single outburst to supervisor in which she called him "god-damn bastard," was
misconduct); Luse v. Mid-City Foundry Company & Ind.
Comm., (Wis. Cir. Ct. Dane County
Dec. 18, 1963), 11 Wisconsin Unempl. Ins. Repts. (CCH) ¶8388 (APP-8, 9) (court
affirmed
commission's decision that employe's single outburst to supervisor described in the court's
decision
as having been "Oh, ______ you" was misconduct); Lathrop v. DILHR
& Presto Products, (Wis.
Cir. Ct. Dane County Mar. 12, 1979), 11 Wisconsin Unempl. Ins. Repts. (CCH)
¶8943 (APP-12)
(court affirmed commission's decision of misconduct where employe told supervisor "stick it
in your
ass"); Stribling v. LIRC and Reinhart Foods, Inc.,
No. 95-CV-006424 (Wis. Cir. Ct. Milwaukee
County Mar. 22, 1996), (APP-16) (court affirmed commission's conclusion that employe's
outburst
repeatedly and loud calling his supervisor a "fucking liar" was misconduct).
6 Great weight deference is appropriate when: (1) the
agency is charged by the legislature
with the duty of administering the statute; (2) the interpretation of the statute is one of
long standing;
(3) the agency employed its expertise or specialized knowledge in forming the
interpretation; and
(4) the agency's interpretation will provide uniformity and consistency in the
application of the
statute. UFE Inc. v. LIRC, 201 Wis.2d 274, 284,
548 N.W.2d 57, 61 (1996).
7 As is evident from the parties' briefs and our review of the
transcript of the hearing before
the ALJ, there is no material dispute about the basic facts of the altercation--what
Kneubuhler said
and did and what the others present said and did.
STATE OF WISCONSIN
IN COURT OF APPEALS