STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION


In the matter of the
unemployment benefit claim of

BRIAN A. NIEHAUS, Employe

Involving the account of

FLEET AND FARM OF MENOMONIE INC, Employer

UNEMPLOYMENT COMPENSATION DECISION
Hearing No. 94200675HU


On March 26, 1994 the Department of Industry Labor and Human Relations issued an initial determination finding that the employe was discharged for misconduct connected with his employment.  The employe timely requested an appeal tribunal hearing, and hearing was held on May 18, 1994.  On May 26, 1994 the appeal tribunal issued a decision affirming the initial determination and finding that the employe was discharged for misconduct connected to his employment.  On June 6, 1994 the employe petitioned for commission review of the appeal tribunal decision.

Based on the applicable law, records and evidence in this case, the commission now makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked about 11 years, most recently as a store manager for the employer, a retail business. The employe's position as store manager required that he supervise all the workers in the store, in addition to other managerial duties. The employe's job description stated that "(t)here will be no fraternization with any non-management person working in the store at any time, during or after store hours." His last day of work was March 7, 1994 (week 11) when he was discharged.

In March of 1992, the manager of the employe's region heard rumors from the loss prevention department of the employe's store that the employe was fraternizing with subordinate employes. The regional manager did not investigate these rumors to determine if they were true, , but discussed the matter with the employe. The employe denied fraternizing with employes.

In April of 1993, members of the loss prevention department told a new regional manager about rumors that the employe was fraternizing with non-management employes. Again, the new regional manager did not investigate whether these rumors were true , but discussed the issue with the employe. The employe again denied fraternizing with employes , and the regional manager stated that it was his first month in the employe's region, and he would consider that there had been no fraternization and they would go forward from that point with a clean slate.

In February of 1994, the employe received a performance review, which was favorable and did not mention fraternization. However, in March of 1994, the regional manager again heard rumors from the loss prevention department that the employe was fraternizing with subordinate employes.

The regional manager investigated the rumors of fraternization by the employe. During the investigation, the employer told the employe he was being investigated for violations of the employer's policies, but refused to specify which policies were involved.

The regional manager found that the employe had allowed a singing telegram at the store for a birthday party. The regional manager testified that this was contrary to employer policy. However, no specific employer policy addressed this or any related issue, and the regional manager admitted he had been present for a singing telegram at another of the employer's stores.

On several occasions, the employe ran into employes at restaurants or bars in Hudson, the town in which the employer's store was located. The employe did not arrange ahead of time to meet with these employes. On two occasions, when the employe ran into Ellefson, who was a department head for the employer, he played darts with Ellefson for approximately 20 minutes. On another occasion, the employe attended an employe softball game with his son. Although testimony was presented that the employe met a female employe at this softball game, the commission does not credit this testimony.

Furthermore, the employe went to a restaurant with an employe in the loss prevention department, Brett Tyrene, to discuss Tyrene's personal problems which were affecting his work. On another occasion, the employe went to a restaurant after work with Tyrene, Ellefson and a female employe, Sundquist, and discussed work-related issues.

Finally, after the Rose Bowl football game the employe went to a tavern, where he saw Ellefson, another employe, and an assistant manager's wife. They gave him a ride to a friend's house.

Ellefson was tardy on 33 occasions in 1993. The employe discussed excessive tardiness with Ellefson, but did not issue written discipline to him until approximately December, 1993. The employe did not discipline Ellefson immediately because Ellefson was going through a divorce, and he felt he should give him some leeway. Furthermore, it was normal procedure for the employer's main office to notify the employe when one of his subordinates was having an attendance problem. This was not done in Ellefson's case, and thus the employe was not aware of the extent of Ellefson's attendance problem. The employe also discussed excessive tardiness with Sundquist, but did not present her with a formal warning.

The employer's fraternization policy does not specifically address the appropriate course of action for a manager who runs into other employes at a restaurant or other establishment. The policy also does not address a manger's need to discuss personal issues with employes when they affect the workplace. Furthermore, the policy does not address whether a manager's presence at an employe function where most or all employes are present would be considered fraternization.

The employer's usual disciplinary policy was a verbal warning, a written warning, suspension and then discharge. The employe was discharged on March 7, 1994, without having received a written warning or suspension prior to discharge. The employer told the employe he was being discharged for violating employer policies and procedures, but the employe asked what policies he violated and the employer refused to tell him. The employe was not offered the opportunity to explain or contradict the charges against him.

The commission finds that there is no credible evidence that the employe was having a romantic relationship with any of his subordinate employes. The commission finds the testimony of Brett Tyrene to be incredible.

Also, the employe did not show favoritism to particular employes. Furthermore, while the employe had some social contact with employes after work, this contact was infrequent and for short periods of time.

Where an employe's actions evince an intentional disregard of an employer's interests, or carelessness or negligence of such degree or recurrence as to manifest an intentional and substantial disregard of the employer's interest, the employe has committed misconduct. Boynton Cab Co. v. Neubeck, 237 Wis. 249 (1941). In this case, the employe did not intentionally seek out other employes to socialize with, but ran into employes at various establishments. He also met employes on approximately two occasions to discuss work-related issues , and attended an employe softball game because he believed it would be beneficial for employe morale.

The employe had received oral warnings about fraternization in the past, however these warnings were distant in time from the discharge and the employe was told he would start over with a clean slate in April, 1993. The employer never disciplined him after April, 1993. The employer failed to follow its disciplinary policy when it terminated the employe without a written warning and suspension.

Given the fact that the employe had only minimal contact with subordinate employes, did not show favoritism to particular employes, and the employer failed to follow its progressive discipline policy, which would have provided the employe with warning that the employer considered his actions to be serious violations of its policy, the commission finds that the employe's conduct did not evince such a willful or wanton disregard of the employer's interests as to constitute misconduct connected with his employment. Therefore, the commission finds that in week 11 of 1994, the employe was discharged, but not for misconduct connected with his work within the meaning of section 108.04(5) of the Statutes.

DECISION

The decision of the administrative law judge is reversed. Accordingly, benefits are allowed as of week 11 of 1994, if the employe is otherwise qualified.

Dated and mailed February 28, 1995
119 : CD00230  MC 692.02

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner


NOTE: The commission did not confer with the administrative law judge prior to reversing the decision of the appeal tribunal. The commission does not disagree with the administrative law judge's findings of fact, but concludes that the facts as found by the administrative law judge do not warrant a finding of misconduct. Thus, the commission reverses as a matter of law.

cc: Mills Fleet Farm


Appealed to Circuit Court. Affirmed by Circuit Court October 13, 1995 (Bench decision).

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