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


TIMOTHY A ANDERSON, Employee

THE REDMOND COMPANY, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03003192WK


An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked for the employer, a design/building company, for just over a year as a project designer. His last day of work was April 2, 2003 (week 14).

The employee's supervisor had indicated early in his employment that the employee could have some flexibility in his working hours, provided he complete his work assignments. The employee frequently arrived at work at 7:30 a.m. and left at 4:30 p.m. However, about 30 days prior to his last day of work the company president told the employee he wanted him to work from 8:00 a.m. until 5:00 p.m. The employee did so thereafter.

During the same time period, the employer distributed a newspaper article about workers in China. The article indicated that in China work was regarded as a privilege, not a right. The employee wrote comments on his copy of the article and noted, among other things, "This sounds like [the company president,]" who had in the past made similar statements. He then returned the copy to his supervisor.

On March 28, 2003, the architectural team, including the employee, took a design manager candidate to lunch. When they returned to the office the company president sent e-mails to each group member asking how the lunch went. The employee did not respond to the e-mail, and the president sent a follow-up e-mail asking the employee to see him. The employee went to the company president's office on several occasions that day, but found him unavailable in each instance. He did not continue to seek out the president, believing they were likely to cross paths eventually and that, if the matter was important, the president would find him.

On Saturday, March 30, the employee came to the workplace to work on his portfolio. Designers working for the employer commonly updated their portfolios as examples of their work. While the employee was in the building the design manager candidate who had been interviewed stopped in to look at the workplace. The employee let the candidate and his family into the workplace and permitted them to look around the building.

On April 2, 2003, the employee was called into a meeting with his supervisor and the company president. The employee was asked if he had been in the building over the weekend. The employee indicated he had been there working on his personal portfolio. The employer's president was upset by this, and stated that the employee should have sought permission before doing so. He was also unhappy that the employee let the job candidate into the building. In addition, the company president was upset that the employee failed to respond to his e-mails, and asked why he had not done so. The employee replied that he had tried to see the company president several times, but he was never available. The employee further stated that he was busy, and that this was not a priority for him. The employer repeatedly asked the employee to explain his attitude, and the employee asked the employer what it meant by this. The employer and employee went back and forth in this manner until the employee stated that the employer should "cut to the chase" and explain what it was getting at. The employee subsequently got up to leave the meeting, stating that they were not accomplishing anything. The employer asked the employee to sit down and told him it was looking for answers to its questions. The employee sat down, and indicated he would make one more attempt to talk about this. The employer then notified him he was discharged.

The issue to be decided is whether the employee's discharge was due to 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 employee was discharged based upon the incidents described above. The commission does not find that the employee engaged in misconduct. Although the employee worked on his personal portfolio at the workplace, the evidence demonstrated that it was commonplace for designers to update their portfolios at the workplace, and the employer had never notified the employee this was prohibited. Regarding the employee's actions in letting the job candidate into the building, the employee credibly testified that the candidate told him the employer had suggested he stop by and tour the facility, and the employee would have had no reason to believe this was not permitted.

The employer also failed to demonstrate that the employee was not working his required hours. The employee testified that, when told he must work from 8:00 a.m. to 5:00 p.m. he conformed his schedule to the employer's request. While the employer's witness testified that the employee continued to leave at 4:30 p.m. on many occasions, he could give no dates on which the employee did so, and provided no time cards or other documentary evidence in support of his assertion. Moreover, the witness failed to explain how he became aware of what time the employee was leaving work, and his testimony on this point was entirely without foundation. The commission also considers it noteworthy that the employer did not talk to the employee again about his schedule, nor did it advise him that failure to stay until 5:00 p.m. would put his continued employment in jeopardy. The lack of warning suggests that the employee either did not continue to leave work early or that, if he did, his actions in this regard did not play a very large role in the decision to discharge him.

The evidence presented at the hearing did establish that the employee had strained relations with the employer's president, that he did not respond to some of the president's e-mails, and that he displayed a poor attitude during their final meeting. However, the commission does not believe that the employee engaged in any actions which rose to the level of misconduct. The employee wrote comments on a newspaper article which indicated disagreement with the employer's own point of view. However, the employer had initiated the discussion and the employee was entitled to disagree with the employer's viewpoints. While better judgment would have dictated that the employee respond immediately to e-mail from the company president, his failure to do so was not so egregious as to amount to misconduct. The employee did make attempts to see the president when he was asked to do so, but was unsuccessful, and the employee's belief that they would eventually cross paths or that the president would look for him if the matter was important was not unreasonable.

Finally, regarding the employee's demeanor at the meeting with the employer, the evidence indicates that employee exhibited a less than positive attitude and allowed his frustration to show. However, the employee did not do or say anything so egregious as to rise to the level of misconduct. While the employer was clearly dissatisfied with the employee's general attitude, the employee had never been warned about his attitude, and was not on notice that a failure to improve in this area could cost him his job. The commission does not question the employer's decision to discontinue the employment relationship under the circumstances presented in this case, but finds that misconduct was not established.

The commission, therefore, finds that in week 14 of 2003, the employee was discharged and not for misconduct connected with his employment, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 14 of 2003, provided he is otherwise qualified. There is no overpayment as a result of this decision.

Dated and mailed March 12, 2004
anderti . urr : 164 : 1 MC 610.06

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The commission conferred with the administrative law judge who presided over the hearing in order to obtain her impressions of the credibility of the witnesses. The administrative law judge had a generally unfavorable view of the employee's credibility, and specifically indicated that she did not believe he stayed at work until 5:00 p.m. or that he went to the company president's office on several occasions in response to his e-mail. However, the employer presented no competent evidence to rebut the employee's firsthand testimony on these points, and the commission does not consider it to be inherently incredible. The administrative law judge also indicated that she had the impression the employee felt he knew more than the company president did. The commission does not doubt that the employee and the employer had many areas of disagreement. However, for the reasons set forth in the body of the decision, it does not believe he engaged in any actions which rose to the level of misconduct.

In its brief to the commission the employer makes the argument that this case is like Merkel v. LIRC and Teach `n Toys, d/b/a The Learning Shop, Appeal No. 02-3157 (Ct. App. June 16, 2003), in which the court upheld a commission decision finding that the employee's conduct in communicating criticisms of management was a deliberate and substantial disregard of the employer's interests. However, the commission does not consider the instant case to be factually similar to Merkel, in which the employee had been warned about similar conduct prior to her discharge, and was on notice that her actions could place her job in jeopardy, and in which the employee shared a complaint about her supervisor with a large number of co-workers.

cc: 
Attorney Harvey Held
Attorney Kerry E. Dwyer


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