BEFORE THE
STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION


In the matter of the
unemployment benefit claim of

NED SUCEVICH, Employe                           

Involving the account of

BRADLEY EXTERMINATING COMPANY (EAST), INC., Employer

UNEMPLOYMENT COMPENSATION DECISION
Hearing No. 90-606142 MW


Pursuant to the timely petition for review and request for further hearing filed in the above-captioned matter, the Commission has considered the petition and all relief requested. The Commission has reviewed the applicable records and evidence and finds that the Appeal Tribunal's findings of fact and conclusions of law are supported thereby. Accordingly, the Commission adopts and affirms the findings and conclusions of the Appeal Tribunal as its own. The Commission also determines that further hearing is not warranted..

DECISION

The employer's request for further hearing is denied and the decision of the Appeal Tribunal is affirmed. Accordingly, the employe is eligible for benefits, if he is otherwise qualified.

Dated and mailed June 21, 1991
150 : MC 630.14   MC 640.15   PC 714.03     PC 714.07

/s/ Kevin C. Potter, Chairman

Carl W. Thompson, Commissioner

/s/ Pamela I. Anderson, Commissioner


MEMORANDUM OPINION

In its petition for review, the employer argues that the finding of fact in the Appeal Tribunal Decision that "the employe did not steal the T-shirt from the customer's premises" is not supported by the evidence. The employer states "a third party witness testified that a Reebok T-shirt had been stolen and one of our employes stated that a Reebok T-shirt was found in Ned's truck."

For unemployment compensation purposes, an employer must establish employe theft by clear, satisfactory and convincing evidence. Testimony that a T-shirt has been stolen in no way implicates the employe by satisfying this quantum of proof. It establishes only the fact of a theft. Thus, testimony from the employer's customer that a theft had occurred is not sufficient evidence upon which to base a finding that it was the employe who stole the T-shirt. The testimony from the employer's employe that a Reebok T-shirt was found in the employe's truck constitutes hearsay testimony because the individual who testified that the T-shirt in question was found in the employe's truck did not actually see the T-shirt in the truck nor did he ever check the contents of the employe's truck. He testified that another employe went through the contents of the truck and reported that the Reebok T-shirt was in the employe's truck. Such testimony cannot be used to make a finding that the employe stole the T-shirt. Sec. ILHR 140.12, Wisconsin administrative Code.

The employer also asserts that the employe's refusal to obey "a direct order" from the employer and the employe's "use of profanity" was ignored by the Administrative Law Judge and "shows characteristics of misconduct rather than unsatisfactory conduct." After reviewing the record in this case, the Commission believes that there are mitigating factors which support the Administrative Law Judge's finding that while the employe's conduct during the telephone conversation of June 30th was unsatisfactory, it nevertheless does not rise to the level of seriousness necessary to support a finding of statutory misconduct for unemployment compensation purposes.   First, the employe's responses were not calculated in any way. He was, without warning and quite suddenly, accused of theft.  His response obviously was the result of some provocation on the employer's part, namely, the sudden accusation. The employe had received no warning that a possible theft was being investigated and was given no time to think about a response. He simply found himself on the telephone and was accused or asked by the service manager whether he stole the T-shirt. The Commission finds it understandable, in this context, that an individual, depending upon the particular person's temperament, would become quite agitated. In that sense, the employe's remarks, while not necessarily optimal, may be more readily understood and are less intentional than they might otherwise be had they occurred in a different context.

Second, there is an important distinction which should be drawn between a profanity which is directed at a supervisor and the one in this case which was more in the nature of an exclamation, not directed at anyone in particular, but which also happened to be profane. In other words, although the employe's language technically was profane, the context and the way in which the statement was worded make it less serious than if the employe had directed the profanity personally to the supervisor. Again, as discussed above, it should be kept in mind that the employe's language occurred in the context of his being somewhat "ambushed" with regard to the accusation of theft.  The employe clearly was surprised by the accusation and somewhat shaken by it.

With respect to the employe's refusal to comply with the order by the supervisor to get off the phone and wash his truck, the Commission notes that the employer's request to wash the truck was clearly a "make work" type of order. The employe was not refusing a direct order to perform a legitimate job task. He was refusing to be excluded from the conversation which was relevant to his future at the employer's place of business. In this sense, it appears from the record that the employe merely wanted to stay on the line to defend himself. While the employer certainly has the right to discuss, in private, the accusation against the employe, the employer chose a poor time to do this, namely, with the employe still on the telephone, after just accusing the employe of theft and after resolving nothing about this accusation with the employe. The service manager's statement to the employe to wash his truck (which did not necessarily need washing) was a rather paternalistic way of treating the employe and, not surprisingly, was not successful in getting the employe off the telephone. Viewed in  light of these circumstances, the Commission concludes that the employe's refusal to get off the telephone and even his short outburst, including a profanity, are less serious than they otherwise would be if the employe for no apparent reason, refused a direct work order from his supervisor and directed an obscenity at the supervisor.

In sum, it appears that the employe found himself in a situation which took him by surprise and that the employe "lost it" for a minute. Such a scenario does not establish the intent necessary to support a finding of misconduct. In addition, this was an isolated incident as far as the record reveals. Generally, isolated instances of unsatisfactory conduct do not rise to the level of misconduct. Finally, the commission does not believe that the employe's refusal to get off the telephone and his accompanying profane remark were the reason he was fired. The Commission believes that the employe was fired because the employer believed he stole the T- shirt. With respect to that issue, of course, the employer did not satisfy its burden of proof.

The employer argues that "unsatisfactory conduct is good cause for termination". The Commission does not dispute that the employer may have had good cause for terminating the employe. However, there is a difference between good cause for termination and the requirement of wilful and substantial disregard for the employer's interests necessary to sustain a finding of misconduct for unemployment compensation purposes. While the employer has established the former, it has not established the latter.

With respect to the employer's request "that another hearing be granted", while the Commission does have the discretion to order the taking of additional evidence in matters before it, that authority is exercised only in a few exceptional circumstances. Here, there was adequate notice of the fact that the hearing would be the parties' only opportunity to present evidence. There is no credible and convincing evidence that this opportunity was improperly limited at the hearing, or that a party has discovered material, noncumulative evidence since the hearing which they could not have known of before the hearing. Finally, the employer has not advanced any other compelling reason to grant a new hearing. Therefore, further hearing will not be granted.

cc: Bradley Exterminating Company


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