In the matter of the unemployment benefit claim of

JAMES R. GALICA, Employe

Involving the account of

OSHKOSH TRUCK CORPORATION, Employer

The employer filed a petition for review by the Commission of an appeal tribunal decision in this matter which held that the employe was discharged in week 15 of 1986 (ending on April 12), but that his discharge was not for misconduct connected with his employment. Benefits were allowed.

Based on the applicable records, law and evidence in this case, the Commission makes the following:

The employe worked as an assembler for the employer, a manufacturer of heavy trucks, until Thursday, April 3, 1986 (week 14), when his employment was suspended for an indefinite period. He was subsequently discharged on or about Thursday, April 10, 1986 (week 15). He was later, however, reinstated effective Thursday, May 8, 1986 (week 19), with the assistance of his local labor union. The reinstatement agreement provided expressly that his time off from work between April 3 and May 8 would be considered to constitute a disciplinary suspension. Between these dates the employe did, however, register for work at a public employment office (Job Service) and file claims for unemployment compensation benefits. The employer contested his eligibility for such benefits, contending that his unemployment was the result of misconduct connected with his employment.

In view of the agreement of the parties to treat the employe's unemployment between April 3 and May 8, 1986, as a period of disciplinary suspension, the Commission considered it appropriate to treat the problem of the employe's benefit eligibility as one of eligibility during a period of disciplinary suspension under section 108.04(6) of the statutes. That section provides:

(6) DISCIPLINARY SUSPENSION. As to an employe's weeks of unemployment by reason of a disciplinary suspension by a given employer, the employe shall be ineligible for benefits as follows:

(a) If the suspension was for misconduct connected with his employment, he shall be ineligible from the given employer's account for each such week and ineligible from other previous employer accounts for the first 3 such weeks.

(b) If the suspension was for other good cause connected with his employment, he shall be ineligible for the first 3 such weeks.

The employe's employment was suspended because on Thursday, April 3, 1986, at approximately 10:00 a.m. he "mooned" a co-worker while both were performing their duties at the employer's plant. The employe acknowledged that he had in fact "mooned" the co-worker, who had been temporarily assigned to his department to assist with a production problem. The employer contended that the employe's action was in violation of a work rule which prohibited, "Immoral conduct on Company premises." While the establishment and enforcement of reasonable work rules is within the scope of management responsibility, it does not follow that every violation of such a rule necessarily constitutes misconduct connected with the employment. A finding of "misconduct" requires evidence of an intent to injure the employer's interests or, at least, evidence from which such an intent can be reasonable inferred. The employe had "mooned" the co-worker because he believed that such action would bring about a more relaxed atmosphere in the department and would thus contribute to better acceptance of the temporary worker by the regular workers in the employe's department. While the method he selected to achieve his goal must be regarded as inappropriate, his action was not undertaken for the purpose of disrupting work or otherwise injuring the employer's interests. His action demonstrated poor judgment rather than an intent to cause disruption or otherwise interfere with the production process. While his motive was to promote the employer's interests, he clearly selected an inappropriate means of accomplishing that goal. His action did not demonstrate an intentional disregard of the employer's interests.

While the employe's conduct on this occasion fell short of constituting "misconduct", as that term is understood for purposes of administering the Wisconsin Unemployment Compensation Law, the employe had violated a reasonable work rule, which the employer had instituted for the protection of all workers in the plant, including female workers. It was therefore not inappropriate for the employer to apply discipline to discourage such conduct by the employe or others in the future.

The Commission therefore finds that the employe was not discharged, within the meaning of section 108.04(5) of the Statutes.

The Commission further finds that the employe's employment was suspended for disciplinary reasons in weeks 15 through 19 of 1986, within the meaning of section 108.04(6) of the Statutes, and that such suspension was not for misconduct connected with his employment, within the meaning of section 108.04(6)(a) of the Statutes, but was for other good cause connected with his employment, within the meaning of section 108.04(6)(b) of the Statutes.

The Commission also finds that the employe was paid benefits in the amount of $355 for 1986 weeks 16 and 17 for which he was not eligible and to which he was not entitled, within the meaning of section 108.03(1) of the Statutes, and that pursuant to section 108.22(8)(a) of the Statutes, he is required to repay such sum to the Unemployment Reserve Fund.

The decision of the appeal tribunal is reversed. Accordingly, the employe is ineligible for benefits in weeks 15 through 17 of 1986. He is required to repay the sum of $355 to the Unemployment Reserve Fund.

Dated and mailed September 12, 1986
101 : CD3630  MC 676.2   MC 676.1

/s/ David A. Pearson, Chairman

/s/ Hugh C. Henderson, Commissioner

/s/ Carl W. Thompson, Commissioner

NOTE: The Commission has made its findings concerning the disciplinary suspension on the basis of the undisputed evidence in the records. Since the appeal tribunal made no findings concerning section 108.04(6) of the Statutes, the Commission infers that the appeal tribunal's findings concerning misconduct would have been applied consistently with the findings she made under section 108.04(5). The Commission agrees with her findings in this regard.

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