BEFORE THE
STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION


In the matter of the unemployment benefit claim of

EDWARD M COLES, Employee

Involving the account of

GANTON TECHNOLOGIES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 89-602532 RC


The Department Deputy's Initial Determination held that in week 11 of 1989 the employee was discharged for misconduct connected with his employment. As a result, benefits were denied.

The employee timely appealed the Initial Determination and a hearing was held on May 1, 1989 before Administrative Law Judge Stephen L. Koenig, acting as an Appeal Tribunal of the Wisconsin Department of Industry, Labor and Human Relations. The Appeal Tribunal Decision, issued on May 10, 1989, modified the Initial Determination to find that the employee was not discharged in week 11 of 1989 but rather voluntarily terminated his employment in week 10 of 1989, not within any exception of the Act allowing payment of benefits, and affirmed the Initial Determination as modified.

The employee timely petitioned for review by the Wisconsin Labor and Industry Review Commission. Based on the evidence and applicable law, and having considered the arguments presented by the parties, the Commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked as a janitor for the employer, a firm engaged in aluminum zinc die casting, on a shift from 2:45 p.m. to 10:45 p.m., Monday through Friday.

On Wednesday, March 8, 1989, the employee reported for work on time, worked for approximately an hour, and then punched out and left. He went from his workplace to the airport, where he caught a flight to Florida that evening. The employee stayed overnight in Florida. The employee was intoxicated at the time.

On Thursday, March 9, 1989 the employee was in Florida. His sister, Judith Nielsen, was apparently in contact with him on that day, and was aware of the potential problems that would be presented if the employee failed to report to work. The employer has a work rule providing that an employee must call in before or during the first part of his work shift the first day he is off work and every other day thereafter, unless excused by the company, or face certain disciplinary consequences. At approximately 1 p.m. on Thursday, March 9, 1989, Nielsen telephoned the employer and spoke to Scott Hansen, a personnel department representative, telling him that the employee would not be into work that day because he was in Florida. The employee actually returned from Florida that evening, arriving in Milwaukee at approximately 8:15 p.m. He did not report to work.

On Friday March 10, 1989, Nielsen visited the employee at approximately 7 a.m. She found that he was so intoxicated that he was in no condition to go to work that day. She called Scott Hansen at approximately 1:30 p.m. that day to tell him that the employee would again be unable to report to work. Hansen, however, insisted that the employee come into work for a meeting. Nielsen evidently relayed this to the employee, who went for a meeting with the employer that afternoon.

Present at the meeting were the employee, Scott Hansen, Lorie Robbins, a personnel department representative, and Dan Schoebel, vice-president of the union in which the employee was a member. The employee was quite intoxicated at the time of the meeting, so much so that Tobbins stated that she would refuse to allow him to report to work later that day. During the meeting, the employer's representative expressed dissatisfaction over the employee's behavior in leaving work on March 8. The employee indicated that he had a drinking problem and that he wanted to go to Alcoholics Anonymous to get help; the employer indicated that it could offer the employee an indefinite layoff so he could get some help for his problem and still have some money coming in, apparently on the assumption that the employee could in that case apply for and collect unemployment compensation benefits. The employee, however, was opposed to the idea of an indefinite layoff, because he wanted to keep working so that he could earn enough money to keep up with the payments on a truck that he had recently purchased. The union representative urged the employee to consider the option of the indefinite layoff so that he could seek treatment for alcoholism. The question of whether the employee would take an indefinite layoff was left unresolved, and the employer urged the employee to think about the matter over the weekend. Also at this point in the meeting, a question was asked of the employee as to whether he was scheduled to work the following day, Saturday, March 11, 1989. Because the employee did not know, a call was placed to his foreman, who indicated that they needed the employee on the following day. Saturday was not a regularly scheduled work day for the employee, and under the employer's work rules Saturday work was voluntary, so that the employee would have been entitled to turn down the assignment. Nevertheless, he indicated that he wanted to work on the following day, because of his concern about trying to make money to meet his truck payments. The employee was thus offered, and accepted, an assignment to work on that Saturday. He was reminded several times by others present at the meeting to report for work on the following day. Nevertheless, the employee failed to report to work on Saturday, March 11, 2989 and did not call in prior to or during the first part of his shift as required by the employer's rules.

On Monday 13, 1989, (week 11) the employee reported for work and was discharged. The reason given for his discharge was failure to appear at work without providing notice to the company as required by its rules, on March 10, 1989 and March 11, 1989. The company's rules provided that two violations of its call-in rule would result in discharge.

The first issue for decision is whether the employee voluntarily terminated his employment or was discharged by the employer. The Commission concludes that the employee was discharged by the employer on March 13, 1989 based on two alleged violations of the employer's rule against failing to report to work without calling in. Even assuming that, in his intoxicated state on the previous Wednesday, March 8, 1989, the employee had some half-formed intent to voluntarily terminate his employment, he did not communicate that intent to the employer. Although his conduct in leaving the worksite after one hour of work and traveling to Florida was arguably inconsistent with the continuation of the employment relationship, the fact remains that the employee was not terminated for that conduct. It thus did not constitute a "constructive quit." The employment relationship continued, as evidenced by the conduct of the employer and the employee in the meeting on Friday, March 10, 1989, in which the employer requested the employee to report to work on the following day and the employee indicated he would.

Had the employer terminated the employee for his entire course of conduct over the period from Wednesday, March 8, 1989 through Saturday, March 11, 1989, the Commission might well have been disposed to find that the employee was terminated for misconduct connected with his employment. However, the employer expressly terminated the employee, not for his behavior in leaving work early on Wednesday, March 8, 1989 and going on a "binge" which prevented him from working for the next several days, but rather based on an allegation that he had committed two successive infractions of the employer's rule requiring an employee to call in prior to or during the first part of his shift to notify the employer of absence. The employer specifically concluded that the employee had violated the "call in" rule on Friday, March 10, 1989 and Saturday, March 11, 1989, and discharged him on this basis. However, as the employer has effectively conceded in its letter to the Commission submitted in response to the petition for review, the record in this case will not support a conclusion that the employee in fact violated the employer's call-in rule on two occasions. On Thursday, March 9, 1989, the call-in requirement was met by the call from the employee's sister to Scott Hansen notifying him that the employee would not be into work. On Friday, March 10, 1989, not only did the employee's sister again notify the employer during the morning of that day that the employee would not be into work, but the employee himself actually went to the premises of the employer later in the day to attend the meeting, at which time it was determined that he would not be allowed to report to work that day. The only violation of the employer's call-in rule established by the record occurred on Saturday, March 11, 1989. With respect to that violation, the employee argues that he mistakenly formed the belief, based on the conversations occurring in the meeting on the previous day, that he was to report to work only on the next Monday. It is apparently the employee's argument that he formed this belief based on the statements made to him during the meeting that he should think about the matter over the weekend. The Commission finds it unnecessary, however, to decide whether the employee's excuse for his failure to call in to report his absence on Saturday, March 11, 1989 is a valid one. Under the employer's work rules, this single violation of the call-in rule would not have resulted in his termination. He was not terminated for this single violation, but rather for two successive violations of the rule, and it is now apparent that one of these did not occur.

The Commission therefore finds that in week 11 of 1989 the employee was discharged but not for misconduct connected with his employment, within the meaning of section 108.04(5) of the Statutes.

DECISION

The Appeal Tribunal Decision is reversed. Accordingly, the employee is eligible for benefits if he is otherwise qualified.

Dated and mailed December 14, 1989
110 : CD0728   MC 626  VL 1007.01

/s/ Kevin C. Potter, Chairman

/s/ Carl W. Thompson, Commissioner

/s/ Pamela I. Anderson, Commissioner

NOTE: The Commission considers that it has reversed the Administrative Law Judge as a matter of law. The Administrative Law Judge concluded that the employee's walking off the job on March 8, 1989 and going to Florida with an apparent intention to find work there was inconsistent with the continuation of his employment relationship, such that his subsequent discharge can be found to constitute a "constructive quit." The Commission disagrees, because the subsequent discharge of the employee was for a reason other than the conduct which the Administrative Law Judge identified as the basis for the "constructive quit."

A voluntary termination subject to section 108.04(7)(a) Stats. is not limited to situations in which an employee affirmatively quits his or her job outright, but can encompass a situation in which the employer discharges the employee. Nottelson v. ILHR Department, 94 Wis. 2d 106, 119 (1980), Dentici v. Industrial Comm., 264 Wis. 181, 186 (1953). Thus, in Nottelson, the employee was discharged for refusing to pay union dues as required by a collective bargaining agreement which made that a condition of employment, and in Dentici the employee was discharged for refusing to accept a transfer to other duties. Although in both cases the separation from employment took the form of a discharge, the court concluded that it was appropriate to treat both separations as if they were quits, since they resulted from voluntary actions on the part of the employees that were inconsistent with the continuation of the employment relationship. However, in both cases, there was a direct causal link between the action taken by the employee, inconsistent with the continuation of the employment relationship, and the subsequent discharge which brought about the end of the relationship. Here, that causal link is missing.

Certainly, the employee in this case acted irresponsibly in leaving work early on March 8, 1989, traveling to Florida, and remaining in an intoxicated state on the following days, preventing him from working. However, the employer did not discharge the employee because of this conduct. It is not for the Commission to say whether the employer should have discharged the employee for this conduct; its task is merely to determine the cause of the subsequent separation of employment. That cause was the employer's discharge of the employee based on the employer's belief that the employee had committed two successive violations of the call-in rule.

The stated effects of this decision are based on the provisions of the Wisconsin Statutes Chapter 108 that are in effect as of this date. If any employment affected by this decision becomes base period employment for a new claim beginning April 2, 1989 or later, the provisions of the U. C. Law recently enacted will apply (1987 Act 38 and 1987 Act 255).

cc: 
Curtis A. Brzezinski
c/o Human Resources Systems

Judith A. Nielsen
Customer Service Supervisor
c/o Modine Manufacturing Company


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