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


JAMES A BARRINER, Employe

SHER PROTECTION AGENCY, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98608248MW


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 employe worked for the employer, a security and private investigation firm, for two months as a security officer. His last day of work was October 24, 1998 (week 43).

On his last day of work the employe was on assignment for one of the employer's clients, a hotel. The employe and some of the workers at the hotel had a disagreement about how the employe was performing his job. At approximately 3:00 a.m. Chauncy Duncan, the employer's assistant chief, reported to the hotel, apparently upon the request of hotel employes, and talked with both the employe and the night managers on duty. A heated conversation ensued, and at some point the hotel employes made it clear to Mr. Duncan that they wanted the employe removed. At the end of his discussion with the employe Mr. Duncan told him he was relieved and to give him his badge. The employe turned in his badge and uniform, and left the premises. He performed no work for the employer thereafter.

The issue to be resolved is whether the employe quit or was discharged, and whether he is eligible for benefits based upon that separation from employment.

The employe indicated that he believed he was discharged when Mr. Duncan told him he was relieved and took his badge. The commission agrees with the employe's assessment of the situation. Although Mr. Duncan testified that the employer had not yet decided whether the employe would be removed from the assignment at the hotel and, further, that it was weighing the alternatives of reassigning him or terminating his employment, it seems unlikely that the employe would have been asked to turn in his badge if the employer was considering the option of letting him remain at the hotel or reassigning him elsewhere. Moreover, given that the managers at the hotel had notified Mr. Duncan they wanted the employe removed, and considering Mr. Duncan's testimony that the employe was not eligible to work for other accounts because he did not have a license to carry a weapon, the commission sees no reason to conclude that the employer had any intention of retaining his services. Under all the circumstances, the commission believes that the employe's separation from employment must be characterized as a discharge.

Having concluded that the employe was discharged, a final question to resolve is whether the discharge was for misconduct connected with his employment. The employe was discharged based upon a disagreement with some of the employes at the hotel regarding the way he performed his job. However, it was not established that the employe performed his job inadequately or that any failures in good performance were wilful or intentional. Under the circumstances, the commission sees no reason to conclude that the employe was discharged due to misconduct.

The commission therefore finds that in week 43 of 1998, the employe was discharged by the employer, and not for misconduct connected with his employment, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The appeal tribunal is reversed. Accordingly, the employe is eligible for benefits beginning in week 43 of 1998, provided he is otherwise qualified. There is no overpayment as a result of this decision.

Dated and mailed March 30, 1999
barrinj.urr : 164 : 1  VL 1007

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner


NOTE: The commission did not confer with the administrative law judge regarding witness credibility and demeanor. The commission, like the administrative law judge, considers the employe's testimony to be credible. However, the commission has reached a different conclusion when applying the law to essentially the same set of facts as that found by the appeal tribunal.

 

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 his employment. Everyone agrees that the employee did not want to work at that site. The employe testified that he had called the lieutenant to see if he could possibly get another assignment. The assistant chief appeared at the site and the employee complained to him about Peggy. He testified "I said that Peggy had gone on tirades before and was on one now. I said I did not want to be here anymore. .I asked Mr. Duncan to transfer me, but he said `no.' I asked Mr. Duncan for a shortened workweek which would allow me to look for another job. He said `no.' "

Mr. Duncan, the assistant chief testified that the employee was the first person he saw and the employe complained that the night managers did not give him room numbers when he asked. "I told the employee that his action in seeking this information was contrary to policy." The assistant chief indicated that the night managers complained that the employe was asking for residents' home addresses and information on what they were doing at the hotel. The assistant chief testified "Every resident of the hotel was listed on a sheet, which was held by the employe at the front gate. The reason for the list was to allow the front gate person to give out room numbers of residents, and to make sure the people requesting the information were invited guests. The employee was not asking the night managers for room numbers but for their home addresses."

The assistant chief talked to the employe in the lobby where the employe told the supervisor that he had tried to get the information from Peggy but she refused to give it to him. He said he was asking for residents' home addresses because he was having problems with them. At some point the assistant chief turned to the employee and said "What's going on here? What are we going to do here?" At employee took off his badge and handed it to the supervisor and said "I quit. Whose words are you going to believe, mine or hers?" The employee then gave the assistant chief his shirt and walked out.

I found this version to be more credible. If the room numbers were already on the sheet, there was no need for the employe to call to ask for more information unless he was really asking for home addresses. The employe may have been frustrated with the night managers but the supervisor had already told him he would not change his assignment or change his schedule to allow him time to look for other work so I found it credible that he would quit at that point. The employe was ineligible for other accounts because he did not have a license to carry a gun.

For these reasons, I would affirm the result reached by the administrative law judge.

Pamela I. Anderson, Commissioner


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