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

THOMAS B STROMINSKI, Employee

EVANS AUTOMOTIVE ENTERPRISES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04200614RH


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, most recently, for about 6 months as a lube technician for the employer, an automobile repair and oil change service. His last day of work was February 10, 2004 (week 7).

The initial issue to be decided is whether the employee quit or was discharged. If the employee quit, a secondary issue is whether the employee's quitting was for any reason that would allow immediate benefit payment. If the employee was discharged, a secondary issue is whether the employee's discharge was for misconduct connected with his employment.

On February 10, the employer's owner overheard the employee having a telephone conversation with a prospective employer about working for that business. This conversation was occurring on the employer's business phone and during business hours. The owner was angered over this as well as the fact that the employee had been absent from work the day before without the owner knowing of this.

After the employee hung up from his conversation with the prospective employer the employer's owner began cursing and slamming chairs. The employee asked the employer to talk about the issue and the employer said, "Fuck you, don't talk back to me." The employer then began poking the employee in the chest and said, "Fuck you, just get out of here now. You're done." The employee then went and changed out of his work clothes. After he had changed the employer announced that the employee was quitting. The employee did not reply.

The commission finds that the employer discharged the employee. The statement:

"Fuck you, just get out of here now. You're done."

is not ambiguous. The employer cannot change the fact that a discharge has occurred by thereafter announcing that the employee quit.

In Boynton Cab Co. v. Neubeck & Ind. Comm., 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 employee, 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 employee'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' with in the meaning of the statute."

The employer was understandably upset with the employee for contacting a prospective employer on the employer's time. The employee exercised poor judgment in seeking other employment on the employer's time. However, the commission does not find that the employee's ill-advised actions rose to the level of misconduct connected with his work for the employer. The employer also asserted that the employee should have been at work on Monday. However, while the owner initially maintained the employee was scheduled to work on Monday, the owner later admitted that it was left to the workers to work out the schedule.

The commission therefore finds that the employee was discharged in week 7 of 2004, and not for misconduct connected with his work 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 7 of 2004, if he is otherwise qualified.

Dated and mailed November 12, 2004
stromth . urr : 132 : 1 : MC 626  MC 610.10

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The commission did consult with the ALJ regarding witness credibility and demeanor. The ALJ described the employee as having "shades pulled over his eyes," an "opaqueness" and a "flatness." The ALJ indicated that it appeared the employee was steeling himself in making up his story. The ALJ indicated he found the employer credible although he did not impart any demeanor impressions of the employer that led to such credibility assessment. The ALJ did not recall the employee's witness. The commission has accepted the employee's version of events. The employer was clearly upset with the employee. Further, the employer denied poking the employee in the chest. However, the employee's witness corroborated the employee's version by testifying that he heard the employee tell the owner to stop poking him in the chest.

cc: Attorney Gregory Harrold


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