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

JAMES E BUTTKE, Employee

MENARD INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 11402491AP


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 30 years for the employer, a chain of home improvement stores. Since May 1999, the employee was the wall coverings manager in the Oshkosh store. The employee was an hourly employee. He punched a time clock and recorded his time accurately.

On October 28, 2009, the employee received a written warning for leaving early on four days and not working until close two nights per week as required. This was the first time the employee was written up for such behavior. He was directed to "check in and out with General Manager on duty. Failure to follow these rules will result in demotion or termination."

On Saturday, May 14, 2011, the employee was scheduled to work from 6:30 a.m. until 8:00 p.m. The employee clocked out at 7:17 p.m. Traffic in the store was light, and there was another person scheduled to work until 9:00 p.m. The employee did not ask permission to leave early. The general manager, who issued the 2009 warning, was not working that weekend.

On Monday, May 16, 2011 (week 21), the employer discharged the employee for insubordination. Specifically, the employee was discharged for leaving his department early on May 14 and for failing to log sales for May 13, 14, and 15, after being told in the last two department management meetings that it was mandatory to do so.

According to the employee, department managers routinely worked other than their scheduled hours without receiving prior approval. In addition, the employer had a policy that allowed department managers to leave at 5:00 p.m. on Saturdays, if the manager had opened that morning and there was someone else working who could close without a manager on duty.

With respect to logging sales, the employee had been given permission to log sales at his desk. He did so every day, as required. At the time of discharge, the employee recently had not physically taken his logs across the store to the conference room to transfer the information onto the employer's chart. The employee was never warned that he could be discharged for failing to log sales information on the conference room chart on a daily basis.

A discharged worker is eligible for unemployment benefits unless discharged for misconduct connected with the employment. Wis. Stat. § 108.04(5). Misconduct connected with employment means conduct showing an intentional and substantial disregard of the employer's interests or of the employee's job duties and obligations, or of negligence so gross or repeated as to demonstrate equivalent culpability. Boynton Cab Co. v. Neubeck & Ind. Comm., 237 Wis. 249 (1941).

The employee contended that the actions for which he was discharged did not constitute misconduct connected with his employment. The commission agrees.

Generally, refusal to follow a reasonable employer directive is misconduct, but an isolated incident of disobedience is not misconduct if the employee has a defensible reason for it. White v. ARA Cory Refreshment Services, UI Dec. Hearing No. 03600041MW (LIRC May 9, 2003). In this case, even taking into consideration the warning the employee received in 2009, the employee's conduct in May 2011 did not show a substantial and intentional disregard of the employer's interests or of the employee's job duties and obligations. The employee left 43 minutes early on a Saturday night. Traffic in the store was light, and there was another worker to cover his department until close. The general manager was not in the store. The employee testified, without rebuttal, that department managers routinely worked other than their scheduled hours without receiving prior approval and that there was a special policy that applied to department managers who worked long hours on Saturdays. The employee did not hide from the employer the fact that he clocked out before the end of his scheduled shift. The employee did not violate, or attempt to violate, the integrity of the employer's time-keeping system.

The employee kept daily sales logs at his desk with the consent of the employer. He was not warned that a failure to update the employer's conference room chart during a certain time period would lead to discharge. An employer is required to place an employee on notice that his job will be in jeopardy if he engages in certain conduct in order to sustain its burden to prove misconduct. Hainz v. Nelson Industries Inc., UI Dec. Hearing No. 00003095MD (LIRC Oct 3, 2000).

While the employer in this case may have been dissatisfied with the employee's conduct, the actions for which the employee was discharged did not evince such a willful, intentional, or substantial disregard of the employer's interests as to constitute misconduct connected with the employment.

The commission therefore finds that, in week 21 of 2011, the employee was discharged but that the discharge was not for misconduct connected with the employee's 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 beginning in week 21 of 2011, if otherwise qualified.

Dated and Mailed January 30, 2012

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner


buttkja . urr : 152 : 1

NOTE: The commission did not consult with the administrative law judge before reversing her decision, because its reversal is not based upon a differing view as to the credibility of witnesses. Instead, the commission reversed her decision based upon a differing conclusion as to what the hearing record in fact established and upon a differing interpretation of the relevant law.

 


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