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


MELISSA A STRASSBURGER, Employe

WALMART ASSOCIATES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98401594GB


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 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 about nine months as a sales associate for the employer, a general merchandise retail store. At a disciplinary meeting with the assistant manager on May 14, 1998, the employe was read a warning which accused her of shopping for rings on company time, writing her own workorder, and closing down the department register early on five occasions in the same month. She denied the employer's allegations. The assistant manager told the employe that she must sign the form because it was company policy. The employe explained that she believed that her supervisor wished to get rid of her, that the allegations were untrue, and that she believed that signing the form would be an admission. The employe was told to take the rest of the day off. She left without signing the warning. The employe called prior to the start of her shift on May 15, and asked whether she could come to work, and was told yes. She said she did not want to sign the paper, and what would they do about it. The assistant manager told her that if she did not sign it she was no longer employed there. The employe asked if not signing meant she would be fired, and she was told she was fired.

The employe in this case was told to sign a disciplinary form, even after explaining to the assistant manager that the allegations were not true. She explained that she did not wish to sign something that was not true, and that she was concerned that her supervisor "trumped up" charges so she could get rid of her. The assistant manager never explained to her that she would not be admitting guilt by signing the form, nor did he ever indicate he would investigate the situation and talk to her supervisor. He simply told her she needed to sign the form. When she called to talk to him about the form, he told her she was fired. Under the circumstances presented in this case, the commission concludes that the employe did not quit but was discharged.

The next issue which must be decided is whether the employe was discharged for misconduct connected with her work.

In Boynton Cab Co. v. Neubeck & Ind. Comm., 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 employee, 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 employee'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."

In this case, the employe was discharged for refusing to sign a disciplinary form because she believed that the allegations were untrue. The employer failed to establish that the allegations were true at the hearing. Although the employer had a videotape of the incident with the rings, the employer did not bring that tape, nor did it establish that she purchased the rings, simply that she looked at them. The employe testified that she had been asked by a customer to sort out some of the larger sized rings. The employer gave her a warning for writing her own workorder, however, the employer's witness had never seen the workorder, and testified that a worker saw a workorder and believed the writing was the employe's. However, the employer was never able to find that workorder. In spite of this, the employe was warned regarding the workorder. In addition, the employe was warned for closing her cash register early, however, her testimony that a customer service manager had to close her register, and would close her register early on some occasions was undisputed. Therefore, the employer failed to demonstrate that the allegations in the disciplinary form were true. More importantly, the employe was only being warned for the alleged infractions. She was actually discharged for failing to sign the disciplinary form. Obviously the employer is entitled to discipline workers for poor behavior, even when the worker disagrees that the behavior occurred or warranted discipline. However, in this case, the employe explained her reasons for not wishing to sign the form, and even though the employer did not intend her signature to be an admission, it did not inform her of this. Given the circumstances presented in this case, the commission does not find that the employe's actions in failing to sign the form were so egregious as to amount to misconduct connected with her work. See Kevin M. Quinn v. Overnite Transportation Co., UI Dec. Hearing No. 98601887MW (LIRC June 15, 1998)

Under the circumstances, the employe's actions did not evince such a wilful and substantial disregard of the employer's interests or of the standards of conduct the employer had a right to expect to constitute misconduct connected with her work.

The commission therefore finds that in week 20 of 1998, the employe was discharged but that the discharge was not for misconduct connected with the employe's work, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employe is eligible for benefits as of week 20 of 1998, if she is otherwise qualified.

Dated and mailed: November 25, 1998
strassm.urr : 145 : 7 MC 640.03

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission discussed witness credibility and demeanor with the ALJ who explained that it was a very common belief of people that signing a warning is an admission and that the employe may have believed that signing the warning was an admission. The ALJ believed that the assistant manager told the employe she could write comments. However, the employe did not testify that she was ever told she could add comments to the warning if she disagreed with it. While the assistant manager testified that he told her she could make notations as to the things that were not true, he also testified that he did not recall the actual conversation of May 15, so the commission credited the employe's version. In addition, the employe's behavior indicated that she considered signing the warning an admission and that she took this matter very seriously. She explained her concerns to the assistant manager, and then called prior to the start of her shift on May 15, to discuss the matter again, even to the point of discussing the situation with her father and having him participate in the phone call. While her fears regarding her supervisor might not have been justified, the employe took the matter very seriously and therefore the commission credits her testimony with regard to what she was told by the assistant manager.

Pamela I. Anderson, Commissioner (Dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. I agree with the administrative law judge that the employe quit. The employe had a choice to sign the warning with the opportunity to give her side of the story and remain employed or not to sign the warning and lose her job. The employer did not intend to show that the employe was discharged for misconduct because they were not firing her for the underlying conduct of the warning. It makes no sense for the employe to refuse to sign the warning because she fears she will be discharged when she faces certain discharge if she does not sign the warning.

Even without the videotape the commission did not believe the employe's story that she was looking for large size rings for a customer. I believe that the employer has the right to warn an employe and to ask them to sign the warning as an indication that the employe has received the warning. I do not believe that being asked to sign a warning would be good cause attributable to the employer for the employe to quit. Therefore, I believe the employe quit not within any exception which would allow for immediate payment of benefits. I would affirm the appeal tribunal decision

Pamela I. Anderson, Commissioner


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