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

ALLEN B JAMES, Employee

CONSOLIDATED AIR EXPRESS LLC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 08606253MW


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 for four months as a laborer for the employer, courier. His last day of work was August 22, 2008 (week 34), when his employment ended.

The initial issue to be decided is whether the employee quit or was discharged. If the employee quit, a secondary issue is whether his quitting was for any reason that would permit the immediate payment of unemployment benefits. If the employee was discharged, a secondary issue is whether his discharge was for misconduct connected with his employment.

The employee was hired to work part-time. Although he twice transferred into full-time positions, he did not succeed with the job responsibilities associated with those positions, and thus ultimately resumed his part-time position. The employee filed a discrimination complaint against the employer and requested that he receive 40 hours of work each week. An investigation of this complaint by another state agency was continuing at the time of the hearing.

On August 21, 2008, the employee was asked to return early to the employer's facility so that his truck could be used by another driver. The employee was upset because he thought he was entitled to work a full eight-hour day. When he returned to the facility he and a supervisor argued about the situation and the employee commented that "this is bullshit."

When the employee reported to work on August 22, 2008, the employee received a written warning for insubordination. The warning accused the employee of arguing with his supervisor, including yelling and swearing at the supervisor, and calling a co-worker "a fat white bitch." The employee was reluctant to sign the warning as he denied making this comment about a co-worker. The employee was told to sign the document or he did not have a job. The employee asked the employer to read the document to him, but the employer told him to read it. The employee testified that most of the things on the disciplinary notice were true but he denied calling the co-worker a "fat white bitch." He informed the employer that he could not sign the form because he did not say that. The employee was then told he did not have a job and he left.

The employee argued that he was discharged. The commission agrees.

The employee explained to the employer that he could not sign the disciplinary form because it contained an inaccurate statement. The employer did not point out that the form contained a spot where he could write his version of the events. The employer also did not inform the employee that signing the form was just to document that he received and understood the warning notice. The employer then discharged the employee for refusing to sign the form.

The next issue that must be decided is whether the employee's discharge was for misconduct connected with his 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 insurance 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."

The employee in this case was reasonable in being reluctant to admit to something he had not done. Although he testified that he read the warning document he noted that he did not read the part that allowed him to state his own position on the matter. When the employee brought his concerns in this regard to the employer's attention the employer failed to point out that he was not admitting anything and that he could explain on the paperwork why he disagreed with the warning. The employer did not present the testimony of the individual who gave him the warning so the employee's testimony about the matter was not disputed. It was the employer's position that the employee refused to sign the warning, then simply punched out and went home. However, the employer did not establish that. In Strassburger v. Wal-Mart Associates, Inc., UI Dec. No. 98401594GB (LIRC Nov. 25, 1998), the commission held that a claimant who refused to sign a warning when the underlying allegations were untrue and she was never informed that she was not admitting to the underlying conduct was discharged and not for misconduct. Likewise in the instant case, the commission cannot conclude that his refusal to sign this paperwork that he believed would be considered an admission evinced such a willful and substantial disregard of the employer's interests as to amount to misconduct connected with his work.

The commission therefore finds that in week 34 of 2008, the employee was discharged by the employer but not for misconduct connected with his work 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, if otherwise qualified.

Dated and mailed December 30, 2008
jamesal . urr : 145 : 1 MC 626  VL 1007.01  MC 640.03

/s/ James T. Flynn, Chairperson

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

The commission discussed witness credibility and demeanor with the ALJ who held the hearing. She indicated that she found the employee credible when he testified that he did not see the part of the warning that informed him that he could explain on the form why he disagreed with the employer's statement because he did not read the form carefully because he was angry. Since he believed he would be admitting to the underlying conduct if he signed the warning, and the underlying conduct was serious in nature, the employee's failure to sign the warning amounted to an isolated incident of poor judgment

 

 


 ROBERT GLASER, Commissioner (dissenting):

I respectfully dissent from the majority opinion. The employee in this case clearly quit his employment with the employer. The employee in this case was aware that he would be discharged if he failed to sign the warning. The employee also agreed that he argued with the co-worker. The employee was instructed to read the warning. The employee first refused to read the warning and finally read it at the employer's insistence. The warning clearly provides the employee to opportunity to check that he disagreed with the employer's description of the violation "for these reasons." Under this sentence space is provided for the employee to explain why he disagreed. Further in large type, the warning states "I have read this Employee Warning Notice and understand it." The warning does not state anywhere that he is admitting to the things on the warning. Furthermore, the employee never asked the employer if he could include his version of the events before signing the warning, or whether his signing the warning would even be considered an admission of the underlying conduct. The employee testified that he did not simply sign the warning because he believed that there was too much conflict at the workplace anyway. The employee was not comfortable working there and when the employer told him he would not have a job if he failed to sign the warning he thought, "Okay. I'm not signing this."

The employee was aware that he would not have a job if he refused to sign the warning. The employee's actions were inconsistent with the continuation of the employment relationship, and for unemployment insurance purposes the employee quit. Further, the employee's own testimony indicates he was not happy with his job and not interested in preserving the employment relationship. In addition, this is not a situation in which the employee could even argue he was being unfairly disciplined. He agreed that he argued with his co-workers, and that his conversation included swear words. His only disagreement with the disciplinary notice was that he did not admit to calling his co-worker a "bitch." The warning had a specific area so he could write down his version of the events. The employer told him to read the form, and the employee did so. His failure to carefully read a form he was supposed to sign, cannot convert his quitting into a discharge. In Lаwlеѕѕ v. Advocap Inc. UI Dec. 07003402BD (LIRC November 19, 2007) the commission held that:

Regarding the employee's assertion that signing the document would have been admitting its contents were true, the evidence is to the contrary. Directly above the line for the employee's signature the document states, "I acknowledge the receipt of this memorandum and understand the contents. I understand that failure to comply will result in discharge from employment." It is clear, then, that the employee's signature would have merely indicated an understanding of the contents of the document and would not have signified agreement that the contents were true. The commission has routinely held that an employee who refuses to sign a corrective action plan because he disagrees with the contents does not have good cause to quit where he could have signed without admitting guilt or agreeing with the allegations contained therein. See, for example, Smith v. The Prudential Benrud Realty, UI Hearing No. 02202470EC (LIRC May 7, 2003); Burton v. Signicast Corp, UI Dec. No. 00603251MW (LIRC Oct. 23, 2000); Beshears v. Intl Cabling Systems, UI Dec. No. 00004185MD (LIRC Dec. 18, 2000).

 

/s/ Robert Glaser, Commissioner

 


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