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

MEDARDO G SANCHEZ, Employee

TECHNICAL METAL SPECIALTIES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 09608785MW


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.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employee is eligible for benefits, if otherwise qualified.

Dated and mailed January 21, 2010
sanchme . usd : 145 : 5 MC 626

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

The employer has petitioned for commission review of the adverse appeal tribunal decision. The employer argues that the employee's testimony, that he notified the second shift supervisor that he had to leave because of a family emergency but that the second shift supervisor denied being so notified. The employee testified at the hearing that on July 14, he informed Mr. Martinez that he was leaving. It was not clear from his testimony whether he informed Mr. Martinez that he was leaving because of a family emergency or if he simply informed Mr. Martinez that he was leaving. At any rate, the employee's testimony in this regard was not disputed. The commission must review the record made by the ALJ and cannot make findings based on information in the petition that is not also part of the hearing record. Further, whether or not the employee left early on July 14 is not critical to the outcome in this case, as the parties agreed that he left that day, and returned the next day.

The next day the employee returned to work and informed his supervisor that he was upset about the fact that he had not been given a raise. The employee informed the production manager that he was leaving and would not be at work the next day. The production manager never informed the employee that he would be considered to have quit if he did so. The employer argues that the employee took his toolbox, which suggests that the employee intended to quit. The employer's argument is not unpersuasive. When a worker takes personal items from the workplace, it can be inferred that the worker did so because the worker intended to quit. However, in this case, the employee had a reason for taking his toolbox, which the ALJ found to be credible. The employee explained at the hearing that the employer had given him some tools, that co-workers would take the tools and that he was concerned that since the employer forgot about his raise, the employer would forget about gifting him the tools. The employee acted in a somewhat juvenile manner when he took his tool box home with him. However, the commission found his explanation plausible, and defers to the credibility determination made by the ALJ. While the employee showed poor judgment in leaving work because he was upset he was never informed that he would be considered to have quit if he did so. This is particularly true in view of the fact that the production manager testified that the employer had a policy that three days of absence would be considered a quitting. The employee could reasonably believe that if he was absent less than three days he would not be considered to have quit. Under the circumstances presented in this case, the employee did not quit his employment with the employer.



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uploaded 2010/01/26