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

DAVID R EDWARDS, Employee

MIDWAY MOTOR LODGE/APPLETON, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06400899AP


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 about 16 months as a bell staff member for the employer, a hotel. His last day of work was February 26, 2006.

The issue to be decided is whether the employee's actions, which led to the discharge by the employer, constitute misconduct connected with his employment.

On November 14, 2005, the employee was given a verbal warning for failing to complete his duties by properly restocking the breakfast room. On February 18, 2006, the employee was given a written warning for not moving two beds apart in one of the hotel rooms, as he was directed to do by his supervisor.

On February 25, 2006, the employee's supervisor checked the places that the employee indicated on his daily task sheet that he had cleaned. The supervisor discovered that two bathrooms were not properly cleaned. The supervisor then told the employee to re-clean the bathrooms and not to check off as complete on his daily task list items that were not complete. The employee then said to another worker that the supervisor should shut the fuck up and that she was not his boss. The supervisor then learned of the employee's statement following her directive to re-clean the bathrooms. As a result, the supervisor and another manager met with the employee on February 26, 2006 (week 9) concerning the incident the day before. During the meeting, the employee admitted making the statement on February 25 and apologized for his conduct. The employer then notified the employee that he was discharged.

The employee explained that on occasion he would forget to complete some tasks, such as restocking the paper towels. The employee indicated that he did not move the beds apart because he was distracted helping another worker deal with a water problem. However, the employee did not exhibit more than negligence on those occasion. His failures in performance did not rise to the level of a willful and substantial disregard for the employer's interests. The employer did not have a firsthand witness to establish what the employee said about his supervisor or where the comment was made. The employer however, testified that when confronted the employee admitted making the comments set forth above. The commission finds that the employee's complaints about his supervisor, made to a co-worker, did not rise to the level of misconduct. It is a reality of the workplace and human nature that workers will complain to each other about their supervisors and/or management. The employee did not make the remark to his supervisor. The employer did not establish that the comments were heard by or could have been heard by its customers.

The commission therefore finds that in week 9 of 2006, the employee was discharged but not for misconduct connected with his work for the employer 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 9 of 2006, if he is otherwise qualified.

Dated and mailed July 14, 2006
edwarda . urr : 132 : 2 : MC 657  MC 640.06

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The commission did consult with the ALJ regarding his impressions of witness demeanor that may have led to his credibility assessments of the witnesses. The ALJ indicated that he did not recall the witnesses.

cc: Midway Motor Lodge of Appleton, Brookfield, WI


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uploaded 2006/07/17