JOHN R BURMEISTER JR, Employee

FOX VALLEY IRON METAL
& AUTO SALVAGE INC, Employer

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, and after consultation with the ALJ, the commission makes the following:

The employee worked over three years as a truck driver for the employer, a metal scrap yard business. His last day of work was Thursday, October 7, 2004 (week 41). When the employee left work that day, he was very upset with the manner in which his truck had been loaded. In particular, the employee suffers from a fear of heights and his trailer was loaded in disregard of his fear.

Prior to this, the employee and the employer enjoyed a good working relationship with no disciplines and the employer's husband/owner typically accommodating the employee's fear of heights. In general conversation and joking, the employee, his coworkers and the owners used profanity at work.

On Friday, October 8, 2004, the employee contacted the employer's business to notify it of his absence that day and the next, Saturday, October 9, 2004, due to fatigue related to a chronic infection. After notifying the employer of his absence the next two days, the employee attempted to discuss his prior day's concern with the owner. The husband/owner directed the employee to telephone the business later, when the wife/owner was available.

When the wife/owner arrived at work, she telephoned the employee at home and asked him, "What's the problem?" The employee replied that the wife and her husband "better" get their "fucking asses" to the business on Saturday, October 9 to discuss his concerns. When she declined, citing other plans for Saturday, the employee responded that the issue needed to be resolved and they needed to make time for him or the "shit would hit the fan." The wife/owner refused to argue with the employee, told him to hire an attorney and hung up the telephone. This further upset the employee and he unsuccessfully attempted to rally coworker support for a picket line to raise wage and other work complaints. The coworkers notified the wife/owner of the employee's attempts.

When the employee reported for his next scheduled shift on Monday, October 11, 2004 (week 42), he discovered that the employer had assigned another worker to operate his vehicle. The employee telephoned the owners at their home asking if he still had a job. He was informed that the employer had no work for him and that the owners considered the employee to have terminated his employment by his prior actions. The employee never returned to work for the employer and initiated a claim for unemployment insurance benefits.

The first issue to be decided is whether the employee quit or was discharged.

The wife/owner contended that the employee was not discharged but that he voluntarily terminated his employment. The commission disagrees. The key element to determining whether an employee voluntarily quit is the employee's intent; the courts have consistently held that an employee can show intent by actions that are inconsistent with the continuation of the employment relationship. Nottelson v. ILHR Dept., 94 Wis. 2d 106,119 (1980); Tate v. Industrial Commission, 23 Wis. 2d 1, 6 (1963). The employee provided notice to the employer of his absences on Friday and Saturday and, while his attitude and language in the Friday telephone conversation with the wife may have been questionable, it did not exhibit an intent to sever the employment relationship or to abandon his job. Instead, it was the wife/owner who discharged the employee when he reported to work on Monday, October 11, 2004 (week 42).

Wis. Stat. § 108.04(5) provides that a worker who is discharged for misconduct connected with the employment is ineligible for immediate payment of unemployment insurance benefits. As such, the next issue for the commission is whether the employee's discharge was for misconduct connected with the employment.

Alternatively, the employer contended that the employee was discharged for misconduct connected with the employment. Specifically, the wife/owner argued that the employee's hostile language and treatment in the Friday telephone call, together with his Friday and Saturday absences constituted misconduct. This contention can not be sustained.

First, with respect to the Friday and Saturday absences, although the wife/owner originally testified that he employee only gave notice for the Friday absence, she later agreed that the employee had also notified the employer of his absence on Saturday. The employer failed to present any evidence that the employee's absences were not for a valid reasons related to his infection. Absences for valid reasons and with proper notice are not misconduct. Simmons v Klemm Tank Lines, UI Dec. Hearing No. 02403991GB (LIRC, June 30, 2003). Accordingly, the employee's Friday and Saturday absences did not constitute misconduct.

Next, with respect to whether the employee's telephone conduct constituted misconduct, misconduct connected with employment means conduct showing an intentional and substantial disregard of the employer's interests or of the employee's job duties and obligations. Boynton Cab Co. v. Neubeck & Ind. Comm., 237 Wis. 249 (1941).

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. Boynton at 260.

While the commission does not condone the employee's use of profanity and hostile tone with the wife/owner, it believes the employee's behavior was more akin to ordinary negligence or an error in judgment, than intentional misconduct. In particular, the conversation started with the wife/owner putting the employee on the immediate defense by asking him, "What's the problem?" The employee was upset by the prior day's incident and used poor judgment in his tone and demand that the owners meet with him at his discretion. When the wife/owner refused, the conversation quickly deteriorated. The wife/owner ended the conversation with the "in kind" comment that the employee should hire an attorney and hung up on him. The employee had no prior history of disrespectful or insubordinate behavior and had no prior warnings. Also, given the work environment, the employee was not on notice that his use of profanity was unacceptable or that it jeopardized his employment. For these reasons, while the employer may have made a valid business decision in discharging the employee, the commission finds that his discharge was not for misconduct as that phrase has been defined above.

The commission therefore finds that in week 42 of 2004, the employee was discharged from his employment but not for misconduct connected with his work within the meaning of Wis. Stat. § 108.04(5).

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 42 of 2004 if otherwise qualified. There is no overpayment as a result of this decision.

Dated and mailed February 22, 2005
burmejo . urr : 150 : 1  MC 626 MC 640.05  MC 675

/s/ James T. Flynn, Chairman

David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

NOTE: The commission did conduct a conference with the administrative law judge before reversing his decision. The ALJ credited the wife/owner's testimony of the Friday conversation and the commission has adopted those findings. The commission's reversal is upon a differing legal conclusion as to whether the employee's telephone conduct rose to the level of misconduct.

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uploaded 2005/02/28