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

Subject: Great Lakes Packaging Corporation, Plaintiff v. Labor and Industry Review Commission and James H. Ziebart, Defendants(Hrg. No. 96601666MW); Case No. 96-CV-542, Wis. Cir. Ct., Washington Co., July 24, 1997

Digest Codes:  MC 696

The employe worked for over eight years as a material handler for the employer, a packaging corporation. The employer had a long-standing rule against smoking inside its buildings, but this rule had been sporadically enforced. On 12/21/95, the employe was standing with several co-workers near the door in the shipping/receiving area of the plant, and one of these co-workers was smoking. The employer's safety manager, Harmant, came past the area and told these employes to please go outside to smoke. The employe replied that Donette Kohn was the only individual smoking, but Harmant said he didn’t care, they all had to go outside. The next day, the employer posted a notice throughout the plant indicating that smoking inside the employer's buildings was unacceptable, and that further violations would result in immediate dismissal.

On January 31, 1996, a particularly cold night, the employe was observed near the door in the shipping/receiving area, inside the building, smoking a cigarette. He was smoking with Ms. Kohn and another co-worker. All three of these individuals were at that time involved in a campaign to organize a union at the employer's plant. When the employer was informed that they had been smoking in the plant all three were discharged. The employe denied that he was smoking in the plant on the date in question.

The commission found that the employe was smoking in the plant, but noted that he had not been disciplined in any other matter during all his years with the employer. It found that this was an isolated incident of poor judgment not amounting to misconduct. The commission emphasized in the memorandum opinion that the employer's enforcement of the no-smoking rule had not been consistent, and often those caught smoking were merely told to go outside. The commission concluded that considering all the facts and circumstances, it was not clear to the employe that he would be discharged for smoking in the plant.

Held: Affirmed. The court emphasized the inconsistent enforcement of the no-smoking policy, and the fact that nobody had been previously discharged for this offense. Given the history of poor enforcement, the employe had reason to question the credibility of the latest notice which warned of immediate dismissal. The court also noted in passing that the only individuals discharged for smoking had been involved in union organizing. Although the discharge may have been reasonable from a business perspective, the commission’s finding of no misconduct for unemployment compensation purposes was also reasonable. The court indicated that its decision was influenced by the great weight standard of review it was required to give to the commission’s decision since the issues of law and fact were closely intertwined in the case.

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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