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


TRACI L STROUD, Employe

OPEN PANTRY NO 587, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99002556MD


An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued a decision in this matter. A petition for review was untimely filed. The commission has reviewed the record and the positions of the parties and makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

1. Late petition

The adverse appeal tribunal decision was issued July 23, 1999, and contained a petition deadline of August 13, 1999. The employe's petition was postmarked August 16, 1999, and received August 17, 1999. Accordingly, it was not timely. In explanation for the late filing the employe's representative indicated that the petition was written, stamped, and postmarked on August 13, 1999 prior to the cutoff time stated on the United States postal box in which it was deposited.

The commission finds that the employe's petition was late for a reason beyond her control. The appeal was placed in the postal stream in time for it to receive a timely postmark. The post office's failure to stamp mail in a timely fashion was beyond the employe's control. Accordingly, the commission accepts the petition as late for a reason beyond the employe's control within the meaning of Wis. Stat. § 108.09(6)(a).

2. Merits

The employe worked for approximately three months as an assistant manager for the employer, a convenience store. She worked as a clerk at the same store, under different owners, for the year preceding the current owners' management of the store. Her last day of work was June 1, 1999 (week 23).

In March 1999, a married couple became the new owners of the convenience store. The wife acted as the manager of the store and was in charge of the day-to-day activities, including supervising the employes. The husband worked outside of the store, but did perform some maintenance activities on weekends. In addition, he would come into the store every morning, before work, and purchase something. Under prior owners, the employe and the wife were co-workers. Both the wife and the employe got along very well. The employe received her orders and directions regarding her job from the wife.

The husband is excitable and somewhat quick to anger. On June 1, 1999, the husband came into the store at approximately 5:50 a.m. and saw that the employe was not wearing her uniform shirt. He became angry and yelled at the employe stating that this was the fifth day that she had not worn her uniform. The employe in turn became angry and yelled back. The employe stated, "I will walk out right now." The husband then told her that she was fired. The employe responded that he was not her boss. Yelling and cursing continued by both. Finally, both the employe and the husband went to the phone to call his wife. They bumped shoulders in their haste and anger to get to the phone. The husband made the phone call and the employe walked out of the store and into the parking lot.

Approximately five minutes later, the employe saw customers going into the store and she realized that the husband was not trained to handle their needs. She went back into the store, behind the counter with the husband and began waiting on customers until his wife, her supervisor, arrived. Approximately five minutes later, the wife walked into the store and looked at both of them. The employe then went to the break room, gathered all of her belongings, including her coffee cup, and proceeded to walk out of the store. The wife asked her where she was going and the employe responded, "Away from Bob [the husband]." The employe did not finish her shift and did not report to work the next day as scheduled.

On paper, the employer requires its employes to wear a uniform shirt. However, in practice, the employer is quite lax in requiring employes to wear the shirt. The employe never received any verbal or written warning for not wearing her uniform.

The initial issue to be decided is whether the employe voluntarily terminated her employment or was discharged. The second issue to be decided is whether the employe is eligible for benefits based on the nature of the separation.

The commission finds that the employe did not voluntarily terminate her employment but was discharged by the employer. The husband/co-owner informed the employe that she was discharged. The husband had as much responsibility and authority as his wife did, had the authority to terminate workers, and told the employe she was fired. The employe's opinion that the husband was not her boss did not change the fact that he had the authority to terminate her and informed her that she was discharged. The employe re-entered the store, essentially as a favor to the wife out of their friendship and not because she had not been fired. The employe could not unilaterally reinstate the employment relationship by her actions.

The next issue is whether the employe was discharged for misconduct connected with her employment. In Boynton Cab Co. v. Neubeck & Ind. Comm., 237 Wis. 249, 296 N.W. 636 (1941), the leading case with respect to the meaning of the term "misconduct" as applied to unemployment compensation in the United States, the court said, in part, as follows:

" . . . the intended meaning of the term 'misconduct' . . . is limited to conduct evincing such wilful or wanton disregard of an employer's interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer's interests or of the employee's duties and obligations to his employer. On the other hand mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good-faith errors in judgment or discretion are not to be deemed 'misconduct' within the meaning of the statute."

The husband fired the employe because she failed to wear her uniform. The employe agreed at the time of hire to wear her uniform. The employe knew that she was expected to wear her uniform. She had never, however, received any formal warning that failing to wear the uniform was jeopardizing her employment. Given the lack of prior warning in this case, the commission finds that the employe's discharge was not for misconduct connected with her employment.

The commission therefore finds that in week 23 of 1999 the employe was discharged from her employment but not for misconduct connected with her work within the meaning of Wis. Stat. § 108.04(5).

DECISION

The administrative law judge's decision is reversed. Accordingly, the employe is eligible for benefits beginning in week 23 of 1999, if she is otherwise qualified.

Dated and mailed December 9, 1999
stroutr.urr : 132 : 7 : PC 731 MC 688.1 MC 698

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission did not discuss witness credibility and demeanor with the administrative law judge. The commission has accepted the ALJ's factual findings. In particular, the commission accepted the ALJ's finding that the husband informed the employe that she was discharged. While the husband denied discharging the employe, the commission like the ALJ accepts the employe's testimony that the husband in fact discharged her. The commission disagrees with the ALJ's conclusion that the employe's subjective belief that the husband was not her boss stripped the husband of the authority he himself testified he possessed.

cc:
RUSTY LEMORANDE
OPEN PANTRY FOOD MART


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