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


HARVEY W SCRIBNER, Employe

HUNTS FOOD CENTER INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98200575EC


On March 28, 1998, the Department of Workforce Development issued an initial determination in the above-captioned matter which held that in week 12 of 1998 the employe quit his employment and not for a reason which would allow the immediate payment of benefits. The employe filed a timely appeal and a hearing was held before an appeal tribunal. On May 7, 1998, the appeal tribunal issued a decision which affirmed the initial determination. As a result, benefits were denied. The employe filed a petition for commission review of the appeal tribunal decision.

Based on the applicable law, records and evidence in this case, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked for the employer, a family-owned grocery business, for about a year and a half on the night scrub crew. The employe's hours were from 10:30 p.m. until 7:00 a.m., and his last day of work was March 13, 1998 (week 11).

During the employe's last night of work the employer's office manager, Holly Hagstrom, the grocery manager, Daryl Carlson, and the wife of the owner went to an office area on the second floor of the grocery store and observed workers in order to confirm suspicions that items were being taken from the store that were not paid for and that workers were violating other policies. The employe was not one of the workers under suspicion.

At about midnight the three managers came downstairs to talk to two workers about what they had observed. The employe walked past Ms. Hagstrom, the office manager, while she was engaged in a conversation with another worker about merchandise in that worker's shopping bag. Ms. Hagstrom shook her finger in the employe's face stating, "And you will be lucky if you have got a fucking job." The employe asked her what she was talking about, to which she replied she had seen the employe talking to other workers for more than an hour. The employe denied having done so. He then asked Mr. Carlson, the grocery manager, what was going on, at which point Ms. Hagstrom hollered over at him to "Shut up" and "Quit your lying."

The employe told Mr. Carlson that he felt he was being abused and that he was upset and needed to go home and cool down. Mr. Carlson responded, "Fine." The employe went to get his jacket and his sack lunch. Before leaving the workplace the employe showed his lunch to Mr. Carlson, asking him to look at it so that nobody could say he walked off with something from the store.

The next day the employe came in to the grocery store before the start of his shift and asked Ms. Hagstrom if he had been fired. Ms. Hagstrom responded that she assumed the employe had quit, but that he would need to talk to his supervisor. The employe then went to see Jim Hagstrom, the assistant grocery manager. Mr. Hagstrom stated he had heard that the employe talked to three different workers for fifteen minutes each the previous evening. The employe denied having done so and suggested that Mr. Hagstrom review the store security tapes. Mr. Hagstrom indicated he would do so. The employe asked if he should report for his shift that night, but Mr. Hagstrom told him not to come to work until he had seen the tapes. The next day, Sunday, March 15 (week 12), Mr. Hagstrom called the employe and stated that he had seen the security tape and that the employe had talked to other workers for a longer period of time than he had indicated was the case. Mr. Hagstrom told the employe that he made a decision the employe quit his employment and had to stand by that decision.

The question to decide is whether the employe quit or was discharged and whether he is eligible for benefits based upon that separation from employment.

The key element to determining whether an employe voluntarily quit is the employe's intent. The courts have consistently held that an employe can show intent to quit by actions 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 employe maintains that he did not voluntarily quit his employment, and the commission agrees. While the employe did leave work before the end of his shift, leaving work early is not always tantamount to job abandonment. Here, the employe told the grocery manager that he was upset after having been talked to rudely by the office manager and that he was going home to cool off. The grocery manager responded that this was fine, and did not do or say anything to indicate that if the employe left he would no longer have a job with the employer. Under the circumstances, the commission does not believe the employe's conduct in leaving work prior to the end of his shift was so inconsistent with a continuing employment relationship as to evince an intention to quit.

The commission also notes that when the employe returned to work the next day the employer did not consider him to have quit and was willing to continue the employment relationship subject to an inquiry into the employe's conduct on his last night of work. It was not until the following day, at which point Mr. Hagstrom had had an opportunity to view the security videotapes, that he notified the employe of his "decision" that the employe quit. Given all of these circumstances, the commission believes that the employer was the moving party in the separation.

Having concluded that the employe was discharged, a secondary issue to resolve is whether the discharge was for misconduct connected with his employment. The employer has not asserted that the employe was discharged because of misconduct and, although the employer did contend that the employe wasted time talking to other workers on his last night of work, this is insufficient to warrant a finding of misconduct.

The commission therefore finds that in week 12 of 1998 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 beginning in week 12 of 1998, provided he is otherwise qualified. There is no overpayment as a result of this decision.

Dated and mailed: July 29, 1998
scribha.urr : 164 : 6 VL 1007.01  VL 1080.20

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

NOTE: The commission conferred with the administrative law judge regarding witness credibility and demeanor. The administrative law judge indicated that she could not tell exactly what the employe said to his supervisor on his last night of work and that she did not find either individual particularly credible. The administrative law judge indicated, however, that if the employe was really going home to cool down he would have returned to work later in his shift. The commission does not agree that an employe who leaves work in order to cool down will necessarily return during the same shift, and the employe gave no indication that he planned to do so. Moreover, the employe worked third shift, and it is understandable that he would not have chosen to return to the workplace at 2:00 a.m. or 3:00 a.m. For these reasons and the other reasons set forth in the body of the decision, the commission concludes that the employe did not voluntarily quit, but was discharged by the employer.


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