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

ANGELA M CARADINE, Employee

HOB LOB LTD PTRSHP, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02004748MD


On July 2, 2002, the Department of Workforce Development issued an initial determination, which held that the employee's discharge was not for misconduct connected with her employment. The employer filed a timely request for hearing on the adverse determination, and hearing was held on August 21, 2002 in Madison, Wisconsin before a department administrative law judge. On August 30, 2002, the administrative law judge issued an appeal tribunal decision affirming the initial determination. The employer filed a timely petition for commission review of the adverse decision, and the matter now is ready for disposition.

Based upon the applicable law and the records and other evidence in the case, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked approximately three weeks as a cashier for the employer, a retail crafts store. The employer discharged her on June 11, 2002, for several instances of unprofessional comments in the presence of customers and the issue is whether the discharge was for misconduct for unemployment insurance purposes. The commission concludes that it was, and so reverses the appeal tribunal decision.

In the first incident, a little over a week before the discharge, the employee used obscenities in front of customers. A store manager counseled the employee about the incident, telling her that swearing was not allowed, that it was unprofessional.

The next day, a second store manager overheard a conversation between the employee and a customer regarding a product the customer was in the process of returning. The employee told the customer that the product was a piece of crap and that the employer should not have it "on the damn shelf." On this occasion, the employee received a second warning regarding the use of obscenities and unprofessional conduct.

The incident precipitating the discharge occurred approximately a week later, when a customer had a return. Pursuant to the employer's policies, returns must be handled and approved by a store manager. The employee paged a manager to the front of the store for the return. Approximately three minutes later, the employee paged the manager a second time. As the manager approached the employee's register, she heard the employee tell a group of customers who had returns that the managers would not let the cashiers have the (return) pads, but that they got mad when the cashiers paged them. The store manager responded that managers are not upset about dealing with returns, that it simply takes a little time to get to the front of the store if the manager happens to be at the rear of the store when paged. Following this incident, the store manager conferred with another store manager and the employer then discharged the employee.

Misconduct for unemployment insurance purposes is the intentional and substantial disregard by an employee of standards an employer reasonably may expect of its employees. The employee's course of conduct meets this standard. The first incident involved the use of obscenities in front of a customer and, even if the employee did not already know that such behavior was inappropriate, she did after the employer warned her about such language. Yet, the employee again engaged in such inappropriate behavior the next day. After receiving a second warning for this behavior, the employee had to know of the requirement that she perform her work in a professional manner. The third incident occurred only a week later, and again involved unprofessional remarks by the employee. The employee knew that it could take some time for a manager to be able to respond to a page for a return. In this light, the employee's remark could only increase the frustration customers already felt about having to wait, in order to make a return.

The administrative law judge reasoned, in finding no misconduct, that the employee would not reasonably have known that a remark critical of management would be considered a violation of the employer's work policies, due to the general nature of the policies. For example, the policy the employer pointed to in the final incident, was the creation of an atmosphere that hinders the company's operation. Were the last incident the only one, the administrative law judge's reasoning would be more persuasive. Given the two failures in the previous several days, however, and the warnings the employee received in conjunction with those incidents, that reasoning is less so. The employer's general rule, coupled with the warnings the employee received, was sufficient to place the employee on notice that her comments were unacceptable. The employee's actions, in their entirety, were sufficient to constitute the intentional and substantial disregard of an employer's interests which is misconduct for unemployment insurance purposes.

The commission therefore finds that, in week 24 of 2002, the employee was discharged for misconduct connected with her work for the employer, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The appeal tribunal decision is reversed. Accordingly, the employee is ineligible for benefits beginning in week 24 of 2002, and until seven weeks have elapsed since the end of the week of discharge and she has earned wages in covered employment performed after the week of discharge equaling at least 14 times her weekly benefit rate which would have been paid had the discharge not occurred.

For purposes of computing benefit entitlement, base period wages from work for the employer prior to the discharge shall be excluded from any computation of maximum benefit amount for this or any later claim. If the employee was also paid base period wages from work by other covered employers, the excluded wages shall be used to determine benefit eligibility. However, any benefits other wise chargeable to a contribution employer's account shall be charged to the fund's balancing account.

Dated and mailed February 27, 2003
caradan . urr : 105 : 1  MC 610.25

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

NOTE: The commission did not confer with the administrative law judge before determining to reverse the appeal tribunal decision in the case. The employee did not appear at hearing and the commission's reversal is not based upon a differing credibility assessment from that made by the administrative law judge. As a matter of law, the commission believes the employee had sufficient notice that the conduct which precipitated the discharge was out of line.

cc: Hobby Lobby (Madison, Wisconsin)


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