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


BRENDA S DOWNS, Employe

QUALITY STATE OIL CO INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98400938EC


On March 14, 1998, the Department of Workforce Development issued an initial determination while held that the employe had been discharged for misconduct connected with her employment. The employe timely requested a hearing on the adverse determination, and hearing was held on April 27, 1998 in Eau Claire, Wisconsin before a department administrative law judge.

On April 29, 1998, the administrative law judge issued an appeal tribunal decision affirming the initial determination of misconduct. The employe filed a timely petition for commission review of the adverse appeal tribunal decision, and the matter now is ready for disposition.

Based upon the applicable law and the records and other evidence in the case, and after consultation with the administrative law judge, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked approximately nine months as a third shift cashier for the employer, a convenience store. The employer discharged her on February 24, 1998 (week 9), following the employe's absence, with late notice, from her February 23-24 shift. The commission concludes that the employer's discharge of the employe was not for misconduct for unemployment insurance purposes, and so reverses the appeal tribunal decision.

The employe was absent without notice on the evening of September 21, 1997. She previously had complained to her supervisor about a co-worker who worked the shift before the employe's. The co-worker would not perform her cleaning duties, which resulted in additional work for the employe. In addition, the co-worker would be simply rude to the employe when the employe reported for her shifts. After the employe complained to their supervisor and there was no change in the co-worker's treatment of the employe, the employe was absent without notice on September 21.

On November 18, 1997, the employer reprimanded the employe for an unknown number of instances of tardiness and excessive requests for time off. The employe also received a counseling statement on December 30, 1997, for instances of tardiness on November 30, December 5, and December 6. The employe was pregnant during the time in question, and the instances of tardiness were attributable to that.

The employe received a counseling statement on or about January 1, 1998, for not having completed her work duties during her shift on New Year's eve. The employe had performed only a minimal amount of her duties, to protest her having been assigned against her wishes to work New Year's eve.

On January 15, 1998, the employe received a reprimand and three-day suspension, for rudeness to a customer, an instance of tardiness on January 14, failure to stock the cooler, and allowing a customer to retrieve beer from the cooler in the store.
On February 10, 1998, the employe received a reprimand for ringing a beer purchase at $3.99 (instead of its actual cost, $4.19). The incident precipitating the discharge was the employe's February 23 absence with notice to the employer only at 4:30 a.m. on February 24.

Misconduct for unemployment insurance purposes is the intentional and substantial disregard by an employe of standards an employer reasonably may expect of its employes. On the surface, the employe's work record appears to support such a conclusion. For most of the incidents for which the employer discharged the employe, however, little or no fault is attributable to the employe, or there are factors mitigating the employe's fault. The employe's September 21 absence is mitigated, for example, by its purpose: to protest the employer's failure to have remedied the unfair treatment of the employe by the co-worker in question. The employe's instances of tardiness, attributable to the employe's pregnancy, likewise do not weigh significantly against the employe. The employe received a reprimand on November 18, 1997, in part for having requested too many days off. There is no indication that the employe's requests were excessive, however; it simply remained for the employer to either grant or deny the employe's requests. The evidence is insufficient to establish that the employe was rude to a customer, for which she received a reprimand on January 15, 1998. Her tardiness on January 14 was due to the weather. The employe's failure to stock the cooler, for which she also was disciplined on January 15, was due to her supervisor's instruction several months previously that she (the employe) was not to stock the cooler. The employe likewise is not at fault for having allowed a customer to go into the cooler to retrieve an item; the employe testified credibly that her supervisor and co-workers routinely allowed such to take place. As for the beer purchase rung up at $3.99 (instead of $4.19), the employe had not been informed of the price change and had already rung it up when the supervisor brought the matter to the employe's attention. It was a judgment call on the employe's part to allow the transaction to go through as rung up, rather than to rescind it and charge the customer the higher price. For the 20 cents at issue, very little fault is attributable to the employe. With regard to the incident precipitating the discharge, finally, the employe's power went out, causing her alarm not to go off. The employe argued that her supervisor or co-workers would call other workers when they were late reporting to their shifts, but that no one did so for the employe on the instance in question. The employer's area manager essentially conceded the employe's claim; he did not contact the employe that night because the employe was on the verge of being terminated from her employment. It of course is an employe's responsibility to report to work on time; on the other hand, there is no reason why the employe should not have received the same courtesy calls the employer made to the employe's co-workers in similar circumstances.

The commission therefore concludes that, in week 9 of 1998, the employe was discharged but that the discharge was not for misconduct for unemployment insurance purposes.

DECISION

The appeal tribunal decision is reversed. Accordingly, the employe is eligible for unemployment insurance, if she is otherwise qualified.

Dated and mailed: August 12, 1998
downsbr.urr : 105 : 1 MC 666.01 MC 605.09

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

NOTE: As indicated above, the commission conferred with the administrative law judge before determining to reverse the appeal tribunal decision in this matter. The administrative law judge found the employe's testimony to be "very credible"; she simply believed that the employe's overall work performance was bad enough to meet the definition of misconduct for unemployment insurance purposes. For the reasons stated in the decision, the commission disagrees.

 

PAMELA I. ANDERSON, COMMISSIONER (Dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. Oversleeping by over six hours is very unusual even if the power goes out. In the past, the employe was intentionally a no call no show because she was upset with a co- worker, she did only part of her work on New Year's Eve because she was protesting having to work that evening and she had been warned about her attendance because she was often tardy. I agree with the administrative law judge that the employe's conduct rose to the level of misconduct connected with her employment.

Pamela I. Anderson, Commissioner


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