NATHANIEL W PROVOST, Employee

M-W MARINE 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, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

The decision of the administrative law judge is affirmed. Accordingly, the employee is eligible for benefits beginning in week 20 of 2005, if otherwise qualified.

Dated and mailed April 28, 2006
provona . usd : 115 : 8  MC 610.06

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

The employee received a "first warning" (Exhibit #8) on April 25, 2005, for allegedly failing on April 21, 22, 23, and 25 to provide to the employer in writing, as requested, the dates he would be gone during the summer to work as a fishing guide, and a list of the boats he had due for delivery. As a part of this warning, the employee was told that his communication with management and his attitude needed to improve. The employee testified that he told the employer in person the dates he would be gone during the summer, and that all of his deliveries would be completed before he left. The employer provided firsthand testimony as to the subject requests for written information, but did not rebut the employee's testimony that he had provided the requested information orally.

The employee received four warnings on May 6, 2005.

In one "first warning" (Exhibit #6), the employer alleged that the employee had not properly documented the items included in a customer order. The employee testified that, after the customer ordered the boat, he requested certain changes which were properly incorporated into the order and which were approved, along with the resulting price increase, by the customer. The employee further testified that the customer was not unhappy about the documentation of the order or the price, but instead about the fact that his boat was not ready on time and the quality of the work was unsatisfactory, factors over which the employee had no control. The only evidence offered by the employer in regard to this warning was hearsay evidence as to the substance of the customer's complaint. This evidence is not sufficient to rebut the employee's explanation.

In the other "first warning" (Exhibit #9), the employer alleged that the employee had not followed the employer's policy when he offered a customer an $8,000 trade-in for a boat, even though the trade-in values provided the employee had not exceeded $7,500. The employer testified that it had a written trade-in policy, but did not offer it as evidence. The employee testified that he had increased the trade-in value by $500, while at the same time increasing the price of the boat by $500, a practice which he had been trained to follow by the employer, and which was followed by the other salesmen. The employer's testimony as to its trade-in policy would not be sufficient to successfully rebut the employee's testimony in this regard.

In a "second warning" (Exhibit #5) issued on May 6, the employer alleged that, despite the warning issued on April 25, the employee continued to complain to coworkers about his pay and working conditions, which was affecting the morale of the organization. The employer provided no further specifics. The employee did not specifically deny this allegation, but testified that he had not been warned about his attitude in the April 25 warning.

In a "third warning" (Exhibit #4) issued on May 6, the employer alleged that, in a meeting with management on May 6, the employee stated that management was stupid for believing a customer's account of an incident instead of his. In his testimony, the employer's sales manager, who was present at the May 6 meeting, corroborated the version of events stated in the warning. The employee testified that he had not stated that management was stupid for believing a customer instead of him, but instead that it was stupid of management to go into a meeting with a customer without first getting the employee's side of the story and without collecting all the relevant paperwork. The administrative law judge credited the employee's testimony and the commission found no persuasive basis in the evidence of record to overturn this credibility determination.

The employee received three warnings on May 9, 2005.

In a warning which does not indicate a level (Exhibit #3), the employer alleged that the employee had told a coworker on May 7, even though it was not true, that the sales manager had told one of the coworker's customers that, because the coworker had done a poor job ordering parts, the customer's boat was not ready to be picked up as scheduled. The employee testified that the coworker had asked him whether the boat had been picked up as scheduled, and the employee told him it had not, explaining that a part had apparently not been ordered and the sales manager had told the customer that he would have to pick it up at a later date. The sales manager testified that he may have called the customer to let him know that the boat was not ready to be picked up, but he would never have told a customer that a salesman had done a poor job. The evidence offered by the employer as to the employee's conversation with the coworker is hearsay and insufficient as a result to successfully rebut the employee's testimony.

In a "second warning" (Exhibit #7) issued on May 9, the employer alleged that a customer had complained to management that the employee had offered him downriggers at no additional cost in order to close a sale, but had then failed to include them. The employer offered only hearsay evidence as to this allegation. The employee testified that, three months prior to the boat sale at issue, he had offered to sell the customer downriggers the employee owned personally, but had never discussed these downriggers in the context of the boat sale, and had never promised these downriggers to the customer. The employee also testified that, after the customer complained, he pointed out to the sales manager that if an item as costly as downriggers would have been included in the sale, it would have been referenced in the sales agreement, but was not. The administrative law judge found that the employee had not misled the customer as alleged, and the competent evidence of record supports this finding.

In a "fourth warning" issued on May 9, the employer alleged that, despite prior warnings, the employee, on May 7, spent almost an hour in coworker Brigham's office complaining that he "was getting screwed" by management. The sales manager testified that he observed this incident. The employee testified that he never told Brigham that he was getting screwed by management. The employee further testified that the worker he was talking to on May 7 was not Brigham, but manager Schimack, and that Schimack did most of the talking in the meeting, mentioning that the firing of the previous sales manager was wrong and that it was "BS" that the workers had to work long hours, but the owners usually left at closing time.

Based on these allegations, the employer discharged the employee on May 9, 2005.

The record shows, at most, that the employee provided an oral rather than a written statement of his summer schedule and boats due for delivery, complained to other workers about his pay and working conditions after warning, stated that it was stupid of management to go into a meeting with a customer without first getting the employee's side of the story and without collecting all the relevant paperwork, and told a coworker that he "was getting screwed" by management.

These incidents do not satisfy the misconduct standard applicable to non-management employees. Discussing job dissatisfaction with receptive coworkers, and expressing disagreement in an appropriate manner and setting to management about one of its policies or practices, are commonly accepted forms of communication within an employment relationship. Punishing the employee for providing the requested information in oral, rather than written, form would, under the circumstances present here, be an elevation of form over substance.

In its petition, the employer offers facts not included in the evidence of record, and requests further hearing for the purpose of taking the testimony of customers and workers involved in the incidents alleged as the basis for the employee's discharge. In his response to this petition, the employee objects to reliance upon these additional facts and to additional hearing, and requests the opportunity for further argument.

It should first be noted that the commission is limited to consideration of the evidence of record in deciding this matter. The employer had full and fair opportunity at the hearing before the administrative law judge on February 8, 2006, to offer the additional testimony and documentary evidence it now seeks to offer through its request for further hearing. The employer has offered no explanation, other than, at least implicitly, its inexperience with the hearing process, to justify its failure to offer such evidence at the February 8 hearing. As a result, no further hearing is merited here and the employer's request is denied.

Since the commission will not be relying upon information not of record or ordering further hearing, the employee's request for further argument is denied as well.

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uploaded 2006/05/01