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

CECILIA R ALFARO, Employee

THE MILLARD GROUP, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07002018MD


An administrative law judge 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 administrative law judge. Based on its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked for the employer, a provider of janitorial services, for about six months as a janitor. Her last day of work was March 27, 2007 (week 13).

When the employee reported for work on March 27, 2007, she was asked by her supervisor to comment on a rumor that was circulating in the workplace that the employee was about to be fired. The employee's supervisor wanted to know who started the rumor. The employee refused to say.

Later that same day the employee's supervisor called the employee into his office and resumed questioning her about the rumor that she was to be fired. The employee reiterated that she was not going to say who started the rumor. The supervisor asked whether the employee thought that person would care about her or would give up their job for her. The employee responded that she did not know what someone else would do, but that she was not the type of person who would tell on somebody else. The employee's supervisor told the employee she was discharged.

The issue to decide is whether the employee quit or was discharged and whether she is eligible for benefits based upon that separation.

The employer contended that the employee quit by failing to return from work after a medical absence. However, the employer's witness had no firsthand knowledge of the events leading to the separation, and the employee contended that she did report for work and was let go under the circumstances described above. Based upon the employee's undisputed testimony, the commission concludes that the employee was discharged by the employer.

Having concluded that the employee was discharged, the next question to decide is whether the discharge was for misconduct. In Boynton Cab v. Neubeck, 237 Wis. 249, 296 N.W. 636 (1941), the leading case with respect to the meaning of the term "misconduct" as applied to unemployment compensation in the United States, the court said, in part, as follows:

". . . the intended meaning of the term 'misconduct' . . . is limited to conduct evincing such wilful or wanton disregard of an employer's interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employe, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer's interests or of the employe's duties and obligations to his employer. 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' within the meaning of the statute."

The employee was discharged for refusing to reveal to her supervisor the source of a rumor that the employee was to be fired. The commission does not believe it was misconduct for the employee to refuse to tell the employer the name of a co-worker who started a rumor, particularly one of so little consequence in the workplace. The employer's insistence on receiving this information was not reasonable, and while the employee's failure to reveal it may have been intentional, it was not in substantial disregard of the employer's interests.

The commission, therefore, finds that in week 13 of 2007, the employee was discharged and not for misconduct connected with her employment, 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 13 of 2007, provided she is otherwise qualified. She is not required to repay the sum of $1,370 to the Unemployment Reserve Fund.

Dated and mailed August 31, 2007
alfarce . urr : 164 : 1  MC 665.12

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

NOTE: The commission did not confer with the administrative law judge about witness demeanor prior to reversing. The administrative law judge indicated in his decision that the employee's version of the facts was credible and uncontroverted and therefore must be accepted. The commission agrees, and has relied upon essentially the same set of facts as did the appeal tribunal, with the exception of the findings that the employee was asked if she was willing to lose her job rather than tell who started the rumor, and stated she was. The commission finds no support for those findings in the record.

cc: The Millard Group (Racine, Wisconsin)


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