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

DARLENE D MOORE, Employe

CARPENTERS DISTRICT COUNCIL OF MILWAUKEE COUNTY & VICINITY, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98607439MW

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 employe is eligible for benefits beginning in week 41 of 1998, if otherwise qualified.

Dated and mailed June 22, 1999
mooreda.usd : 135 : 7  VL 1007.01

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

In its petition for commission review and its brief, the employer argues that the employe voluntarily terminated her employment within the meaning of Wis. Stat. § 108.04(7)(a). The employer contends that the employe abandoned her job on Friday, October 2, 1998 and cites several reasons in support of its contention.

First, the employer contends that the employe made no mention of her personal problems at a secretary meeting that had been convened earlier that morning. However, it was not established that the employe's son's babysitter or the employe's mother called prior to this meeting. Second, the employer contends that the employe made no attempt to look for her immediate supervisor, the district counsel's assistant business manager or his supervisor before leaving work on Friday October 2. The employer contends that this action was inconsistent with the employe's usual practice of notifying management when she had to leave.

It is undisputed that the employe left the employer's premises without proper communication to management. The employe admits that she did not leave any note for her supervisor or even attempt to look for her supervisor or his supervisor on the employer's premises when she decided to leave work that morning. However, it should be noted that the employe was responding to several personal emergencies that arose early that morning. Additionally, the employe had been up the night before tending to her sick son. The employe's son's babysitter (her son's paternal grandmother) called the employe early that morning stating that she had forgotten she had an eye appointment. According to the employe, the babysitter was hysterical. Shortly thereafter, the employe's mother called the employe stating that she needed to leave immediately for Mississippi to tend to the employe's ailing grandmother. The employe's mother requested that the employe assist her in her preparation for her trip. The commission believes that these personal emergencies offer an explanation as to why the employe did not follow either the employer's customary procedure or the employe's own usual practice of notifying management. Whether fault for this conduct can be assessed against the employe is another issue, discussed below.

Thirdly, the employer cites to the fact that the employe turned in her keys and gate opener and removed her personal belongings from her desk. It is uncontraverted that the employe left her gate opener behind. However, the gate opener was left so a fellow co-worker could use it since the co-worker's gate opener did not work. In regard to the keys, the ALJ noted that the keys were not left with management but rather upon the employe's own desk, signifying an intent to return to work. It is plausible to believe that the employe did not know when she would return to work as a result of the emergencies, so she left the keys on her desk. Additionally, it could be argued that the employe was not thinking clearly when she left the keys behind.

It is disputed whether the employe removed her personal belongings on Friday, October 2. There is testimony by the employe that she removed an empty box along with her purse on that day. A co-worker testified that she saw the employe leave with a box but did not know what was inside it. One can conclude from this testimony that this witness also did not necessarily know whether the box was empty or contained the employe's personal belongings. There is testimony from the employer's witnesses that pictures that sat on the employe's desk were gone on Friday, October 2. The witnesses however could not specifically recall when they last saw the pictures on the employe's desk or whether they were in fact placed in the employe's desk during her absence. The employe on the other hand denies removing her personal belongings on October 2, and, in fact, made arrangements to pick them up after her separation.

Finally, the employer contends that the employe saw no urgency in calling her employer before Sunday morning. The commission notes however that in addition to dealing with her sick son, her son's babysitter, and her mother's immediate need to travel to Mississippi, the employe was informed early Saturday morning, October 3, that her father had had a heart attack and died unexpectedly. The fact that the employe did not call her immediate supervisor at his home until Sunday morning was not an unreasonable act on the part of the employe given these personal circumstances. Because, the employe was attending to serious multiple personal emergencies, her failure to contact her supervisor cannot be construed as a dereliction of her duty to notify her employer of her Friday absence.

While the commission agrees with the employer's citation of case law that states that an employe need not utter the words "I quit" before a voluntary termination will be found, the commission is satisfied that individually or cumulatively the factors raised by the employer fail to establish an intent on the part of the employe to quit. The employer's arguments discount the employe's state of mind at the time these events were occurring. The employer's arguments also discount the fact that the employe felt it necessary to call her immediate supervisor at his home on Sunday morning, after things had settled down regarding her family matters. The employe missed less than a day of work and contacted the employer a day and a half later. The employe also attempted to report to work on Thursday, October 8 following her final conversation with her immediate supervisor on Wednesday night. The employe was not allowed to return to work on Thursday because the employer believed the employe had abandoned her job on Friday, October 2.

After reviewing the evidence, conferring with the ALJ as to witness credibility and considering the employer's arguments, the commission is satisfied that the record supports the ALJ's conclusion that the employe did not intend to quit but rather the employer discharged the employe when it refused to allow the employe to return to work after she tended to family matters, including traveling to Nevada to attend her father's funeral.

Concluding that the employer was the moving party in this separation, it is required to establish that the employe's discharge was for misconduct connected with her employment, in order to support a finding of ineligibility. The employer failed to establish that the employe's discharge was for misconduct. The employe was absent less than a day before she notified the employer of her multiple family emergencies on Sunday morning. Additionally, the employe was advised by her immediate supervisor on Sunday morning that she should stay off of work and take care of her personal matters and contact her supervisor in the middle of the week. The employe complied with these instructions but yet was refused the ability to return to work on Thursday, October 8. The commission therefore concludes that the employe's discharge was not for misconduct connected with her employment, given the above reasons.

PAMELA I. ANDERSON, COMMISSIONER (Dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. The employe need not say "I quit" in order for the separation from employment to be a quit. The employe turned in her keys along with the gate opener when she left. She told Joanne "I was having personal problems and I had to go. I said I would call back later to let them know what was going on." The employe explained that she left her gate opener because Joanne's gate opener was not working. She did not explain why she left her keys. She said she would call back to let them know what was going on but did not call that day.

The employe says she was unable to find Mr. Dziedzic because he was not in his office. She did not leave him a note. Mr. Dziedzic called the employe's home at about 11:00 a.m. and left a message. Dziedzic said "I'd gone out in the office area, discovered she was not there, that she abandoned her job, and were considering this a quit. I told her to call me as soon as possible." The employe finally called the employer on Sunday morning at home.

Dziedzic reported "In regard to what personal belongings of the employe's I'd noticed were missing from her desk, different photographs and things she hung up around her work area. Her work area looked abandoned. She probably had a dozen or more photographs hung up." Dziedzic testified, "In regard to when I last saw photographs at your desk, probably the day before you left."

The senior secretary for the employer testified "I saw the employe leave. She had a box. In regard to what I saw her do with her gate opener, she came in the front door and put it in the tray, the pass through. I observed her desk later, and her keys were on the desk with the gate opener. I did not see any personal belongings." She testified "I do not know about whether she had personal items in her work area that week but she usually had many pictures in her area."

The employe had said she would call back when she left. She did not receive the news about her father's death until the next day so she had no new personal problems that day after she left. The problems with her mother-in-law would not have prevented her from calling nor would helping her mother get ready to go to Mississippi have prevented her from calling.

I agree with the employer that the employe abandoned her job especially when she took her pictures and left her keys. The final straw for me is that she did not respond on Friday to the employer's message that they assumed she had quit and to call them as soon as possible. If she had not quit, I believe she would have called on Friday.

For these reasons, I would reverse and find that the employe quit not within the exceptions that would provide for immediate payment of benefits.

__________________________________________
Pamela I. Anderson, Commissioner

cc: 
ATTORNEY MATTHEW R ROBBINS
PREVIANT GOLDBERG UELMEN GRATZ MILLER & BRUEGGEMAN SC

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