STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

FRANKLIN BEANLAND JR, Employe

GUNDERSON CLEANERS INC, Employer

UNEMPLOYMENT COMPENSATION DECISION
Hearing No. 96402632AP

On September 14, 1996, the Department of Workforce Development issued an initial determination in the above-captioned matter which held that in week 31 of 1996 the employe was discharged and not for misconduct connected with his employment. As a result, benefits were allowed. The employer filed a timely appeal and hearing was held before an appeal tribunal which began on October 20, 1996 and was continued on January 6, 1997. On April 1, 1997, the appeal tribunal issued a decision which reversed the initial determination to find that the employe was discharged for misconduct connected with his employment. As a result, benefits were denied. The employe filed a timely petition for commission review of the appeal tribunal decision. Based on the applicable law, records and evidence in this case, and after consultation with the administrative law judge, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked for the employer, a dry cleaning chain, for approximately two years as general manager. His last day of work was August 2, 1996 (week 31).

Prior to April of 1996 the employe had answered directly to Mr. Gunderson, the owner of the business. However, on or about April 29, 1996, the employer brought in a chief operations manager named Glenda Clay, who became the employe's supervisor. Ms. Clay also took over some of the employe's duties, including the management of store operations. Prior to being hired by the employer Ms. Clay had worked as a dietitian. She had no experience in the dry cleaning business. The employe asked Mr. Gunderson why Ms. Clay was being hired and was told there was no particular reason. Ms. Clay testified that at the time of her hire Mr. Gunderson told her the employe might not want to work with her and that she was to let him know if this occurred.

Shortly after Ms. Clay started her employment she introduced herself to the employe and indicated that she felt they would make a good team. However, the employe responded that there was nothing he could learn from her about the dry cleaning business. On or about May 17, 1996, Ms. Clay learned that the employe had been making disparaging comments about her to other staff members. The employe had referred to Ms. Clay as a "fucking dietitian" and as "Glenda The Good Witch." He had also told staff members that he had heard the reason Ms. Clay was hired was because she was having an affair with a friend of Mr. Gunderson's.

On May 20, the employe was called into a meeting by Mr. Gunderson in which, without specifically referring to the remarks mentioned above, he told the employe that Ms. Clay said he was not cooperating with her. Mr. Gunderson gave the employe a week's suspension in order to consider his future with the employer.

On May 28, the employe returned to work from his suspension and had another meeting with Mr. Gunderson and Ms. Clay. At this meeting the employe asked Ms. Clay what she wanted him to do, and Ms. Clay told the employe his responsibilities would include preventive maintenance for plant equipment, vehicle maintenance, store inventory, and trying to locate a housekeeping service. She indicated she wanted weekly meetings to review his performance.

On May 30, Ms. Clay held a supervisor's meeting, during which the employe slouched in his chair, doodled, and did not actively participate. The next day Ms. Clay asked the employe whether he had made any progress on the responsibilities she had assigned him a few days earlier. The employe explained that he had not, because he had been filling in at the employer's plant for a presser that was absent. Ms. Clay agreed that the employe had prioritized appropriately.

On June 16, Ms. Clay met with the employe about his projects and clarified some of his job responsibilities. Ms. Clay had expected a written report from the employe regarding his areas of responsibility, but did not receive one. She did not confront the employe about his failure to provide a written report at this time, nor at any other point prior to his last day of work.

The employe scheduled a week's vacation for a time when a management conference was to have been held. Although the employe was responsible for coordinating and hosting this conference, he had not received any information on the conference subsequent to Ms. Clay's hire and believed Ms. Clay would probably be handling it. When the employer learned the employe had scheduled his vacation during the conference, it did not ask him to reschedule it.

On August 2, 1996 (week 31), Mr. Gunderson told the employe he was discharged and that he was sorry things had not worked out. The issue to resolve is whether the employe was discharged for misconduct connected with his employment.

In Boynton Cab v. Neubeck, 237 Wis. 249, 296 N.W. 636 (1941), the leading case with respect to the meaning of the term "misconduct" as applied to unemployment compensation in the United States, the court said, in part, as follows:

". . . the intended meaning of the term `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 employe, 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 employe'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 employer contended that the employe was discharged for insubordination, unwillingness to participate, and for being disruptive. The employer's complaint with the employe dealt primarily with his attitude. Ms. Clay testified that when she would meet with the employe he was quiet, and that she felt the employe was insubordinate in his unwillingness to participate in a dialogue during meetings. However, Ms. Clay acknowledged that the employe did not resist what she asked him to do, that they discussed tasks, and that the employe took notes. Indeed, no evidence was presented to establish that the employe deliberately failed to follow specific orders or perform assigned work. While Ms. Clay stated that the employe failed to provide written reports or to prepare the appropriate type of written information, the evidence indicates that Ms. Clay did not clearly communicate to the employe what types of reports were expected and when, nor did Ms. Clay ever speak to the employe about his failure to submit the reports. Although it is certainly possible that the employe dragged his feet on the assigned projects--and he obviously did not approach them with enthusiasm--it was not established that he failed to comply with any clearly communicated expectations of the employer's.

With respect to the conference, the employe testified that he had received no information on the conference and that he thought Ms. Clay would probably be handling it. Given that Ms. Clay had taken over many of the employe's duties, the commission does not find this conclusion entirely unreasonable. Moreover, the employer did not ask the employe to reschedule his vacation in order to handle the conference once it learned about the conflict, and the employe was given no opportunity to remedy the situation. Under the circumstances, while the employe may have exercised poor judgment in failing to confirm that he was no longer responsible for the conference, the commission is unconvinced that he deliberately failed to perform an assigned job responsibility or ignored the conference in order to embarrass the employer or Ms. Clay.

Finally, while the evidence established that the employe made rude and inappropriate comments about Ms. Clay to his co-workers, the employer talked to the employe about his attitude and gave him a week-long suspension as a result, and no evidence was presented to suggest that this conduct recurred. While the employe did continue to have a poor attitude, which may well have rendered him ill-suited for continued employment with the employer, a mere lack of enthusiasm, in the absence of some evidence of actual insubordination or other wilful disregard of the employer's interests, does not rise to the level of misconduct.

The commission, therefore, finds that in week 31 of 1996 the employe was discharged and not for misconduct connected with his employment, within the meaning of Wis. Stat. § 108.04 (5).

DECISION

The appeal tribunal decision is reversed. Accordingly, the employe is eligible for benefits as of week 31 of 1996, provided he is otherwise qualified. He is not required to repay the sum of $7,190.00 to the Unemployment Reserve Fund.

Dated and mailed: February 12, 1998
beanlfr.urr : 164 : 8 MC 610.15  MC 640.01 - General

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

NOTE: The commission consulted with the administrative law judge regarding the credibility and demeanor of the witnesses. The administrative law judge indicated that she did not believe the employe's testimony that he did not know he was responsible for the conference and concluded that he was hoping to embarrass the employer and Ms. Clay. However, as stated in the body of the decision, the commission does not consider it implausible that the employe would have concluded Ms. Clay was to handle the conference, particularly where Ms. Clay was taking over many of the employe's other functions. Further, while the appeal tribunal decision indicates that the employe told Ms. Clay he "forgot" about the conference, which the administrative law judge considered incredible, Ms. Clay's testimony on this point was actually that the employe told Mr. Gunderson he had forgotten about the conference and, therefore, amounted to mere hearsay. During the credibility conference the administrative law judge also indicated that she believed the employe was confused about the reports and did not think Ms. Clay made her expectations clear to him. The commission agrees with this credibility assessment, and has made factual and legal findings that comport with it.

cc: HOWARD T HEALY
ATTORNEY AT LAW

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