*1 ZECHES, Petitioner-Appellee, C. Scott
IOWA DEPARTMENT OF JOB SER-
VICE, Respondent-Appellant.
No. 2-68069.
Court of Appeals Iowa.
Jan. Maley, Dewey,
Walter F. Blair H. Schlak, Jr., Moines, Edmund Des for re- spondent-appellant. Moines, petitioner- Des Ozga,
Martin appellee.
SNELL, Judge. petitioner, case concerns whether Quik Trip manager, legally store de- nied unemployment vul- gar language that constituted misconduct. incident triggered occurred sometime after 6:00 a.m. at store. The auditor had company been all working night inventory on an when A petitioner arrived for a.m. work Pepsi in, vendor friend came noticed auditor asked what doing again petitioner’s store there since had been inventoried the before. The “The mother- responded, stupid just in the office can’t their fuckers ass, head out of their know they don’t going what’s on.” The auditor heard *2 remark, although forty supervi- he was some feet to see if would back to his store, did, away at the back of the the farthest They sor. and were considered not register petition- cash where point from the very respectful by the Petition- supervisor. Two other standing. people, er was cus- er at this time by supervi- was counseled tomers, closer were in the store petitioner degraded everyone sor who felt store, the auditor. petitioner than but himself. The before the inci- dent, supervisor this talked to for discharged “talking Petitioner was for concerning an hour conversations we deal way that to customers vendors employees. to other Petitioner was then Appeal Board de- with.” The Job Service told he should be careful in his commu- very petitioner’s application nied employees nications with other because ground guilty the ment benefits on say something sometime he would that of misconduct. The district court reversed. could result in his termination of employ- principles regard The our review ment. of administrative decisions are set forth in Service, Gipson v. Department agency’s interpretation Job of miscon- The (Iowa 1981). Appeal N.W.2d by 4.32(l)(a) duct as reflected I.C.A. was application laws for here are section supreme the court in Huntoon approved 96.5(2)(a) (Iowa 1981) Code and 370 I.A.C. Service, v. Iowa Job Department of agency rule states: (Iowa 1979). facts,
Misconduct is defined as a deliberate appeal to the board standard act or a worker which consti- omission clearly found that actions were the duties tutes a material breach of misconduct. the trial court noted out of such worker’s arising was not conclusion further ex- contract Misconduct as employment. plained, that flaw is not decisive. the term is Our task is to review the record as provision as limited to conduct agency’s a whole to determine if the deci evincing such willful or wanton supported by sion is substantial evidence employer’s of an interest as is found comports with the applicable rules of deliberate violation or of stan- law. Cook v. Iowa of Job Ser employer dards of behavior which the vice, (Iowa 1980) 299 N.W.2d right expect employees, or in While the court is not bound agen degree carelessness or of such law, cy’s interpretation may give equal of recurrence as to manifest culpa- conclusions, great weight deferring to its or evil bility, wrongful design, intent expertise. American Homes Products to show an intentional and substantial disregard Review, Corp. v. Iowa Board of Tax State of the employer’s interests or of (Iowa 1981). 302 N.W.2d employee’s duties the employer. From our we review find that mis added). (emphasis We focus on the under- by petitioner’s conduct is established actions language. lined as being evincing conduct such willful or hearing petitioner initially allowed wanton of an interests “it highly possible” could be he said the as is found in deliberate violation or disre specific attributed but equivo- words later gard of standards of behavior which the against cated that it was his word the audi- employer expect employ has the tor’s. The Pepsi vulgar vendor said no lan- specifically ees. warned guage was used in of any front customer day before about his conduct and was and one of the customers stated that he put on notice that such conduct in the fu failed to remember hearing the statements. ture could result in his dismissal. We do manager’s meeting specific
At a two not find it fatal that directions as to or three incident, type weeks before the store were not proscribed made derogatory people statements to other given. agency’s We conclude decision upheld entitled to be ly depri and the district court constitute misconduct warranting benefits, deciding erred in vation insurance that misconduct was not even if the entitled to shown as matter of law. for the refusal REVERSED AND REMANDED FOR discharge for cause does not Every mean ENTRY OF JUDGMENT. cause constitutes al *3 (citations).” though Hulse v. Le judges OXBERGER, All except concur vine, 818, 814, 386, 41 N.Y.2d 393 N.Y.S.2d C.J., SCHLEGEL, and J. 386-87, 1034, (1977). 361 N.E.2d 1035 See SCHLEGEL, Judge (dissenting). Nelson, 136, 141, Cal.App.3d also v. 31 Silva I dissent. 908, Cal.Rptr. (1973); 106 910 Hawkins v. Unemployment Compensation District majority finds that en- Board, 619, (D.C.1977); 381 622 A.2d Batts gaged in misconduct sufficient to v. Review Board of Indiana Employment unemployment benefits when he was over- Division, 405, Security Ind.App. 179 385 heard in a conversation with a friend 1174, N.E.2d (Ind.Ct.App.1979); 1175 n. 1 deprecatory language referring in to his Central Bell Telephone South Co. v. Sum superiors. poor judg- showed 876, rall, (La.Ct.App.1982); 414 877 So.2d remarks, ment in making his tasteless and of Employ Garfield Director Division of his employer undoubtedly had the 94, 95, Security, ment 377 Mass. 384 N.E.2d believe, discharge however, him. I that the Commonwealth, (1979); 643 Blake v. errs majority in this case in equating con- Unemployment Compensation Board of Re duct that could in properly result view, 358, 362-63, 56 Pa.Commw. 425 A.2d “misconduct,” as the term is adminis- (1981); 45 Johnson v. of defined, tratively which in results 554, 556, Employment Security, 138 Vt. disqualified receiving from (1980). compensation. The facts case an appro- jurisdictions Several have made this dis- priate setting distinction tinction between “dischargeable” conduct explained question above. We do not resulting in a of denial bene- discharge petitioner— employer’s ability fits. City In of Dallas v. Texas Employ- determined that subjectively Commission, ment (Tex.Ct. S.W.2d comments of- petitioner’s personally App.1981), the court held that an fensive, of com- especially light in ee’s a polygraph refusal take test did not ments, and of disciplinary merited constitute meaning misconduct within the sort; case, discharge. some in It is of statute, the unemployment compensation however, assume, thing, as quite another though even could have been does, these majority apparently justifiably discharged from po- his comments constitute under “misconduct” sition for such refusal. court said: rigorous objective the more definition constituting good Conduct cause for ter- spelled term in 370 as out I.A.C. mination of employment does not neces- comments re- Petitioner’s § equate sarily with conduct disqualifying personal displeasure with only flected his one from the benefits of [the employer; they any did not affect in compensation To consti- statute]. interest, nor significant way latter, tute the acts or omissions must did on duties and impinge rise to the level which In employer. to his other generally requires intent, wrongful bad words, petitioner’s conduct not indicate did faith or wanton of the employ- “willful or wanton [his] ers’ interests ployer’s interest” or “an intentional at S.W.2d a different factual duties and substantial [his] most, setting, the New York court employer.” stated: “Nor does the refusal to work overtime necessari- under the last sentence conduct would fall Supreme recog- mere The Wisconsin Court 4.32(l)(a): “On the other hand
of § conduct, inefficiency, unsatisfactory policies failure between the nized the connection as the result of inabili- good performance compensation in behind incapacity, ordinary inadvertencies or ty or making the distinction re- necessity instances, good in isolated v. Afram to above. Cheese ferred See faith errors in or discretion are 320, 325, Co., Brothers 32 Wis.2d meaning not deemed misconduct within the (1966). of the statute.” It must be remembered not vitiated policy argument language that no customers heard the to those who the fact that 96.2 directed § he made the statements to a by petitioner; no fault of their “through are unemployed at the personal friend who was the store considered this Maryland own.” The court time. do not believe his conduct in issue and concluded: rises re- case level misconduct contention, reject the ... Finally, we *4 quired unemployment benefits. to recover allowing the claimants addition, recognition I believe of the policy benefits would contravene warranting distinction between conduct dis- unemployment compensation statute. charge warranting and that denial of bene- policy the declaration of ... required fits is after consideration of the unem- speaks aiding “persons in terms of public policy unemployment behind our own,” through no fault of their ployed 96.2 compensation scheme. Code § do not themselves establish a these words policy following states that terms: based on insecurity unemploy- Economic due to resulting from the “fault” of the claim- health, ment is a serious menace to the Rather, specific provisions ant. morals, the people and welfare of legislature grounds enumerate those Involuntary state. disqualify has determined claimants from subject general therefore a interest receiving benefits. requires and concern which appropriate Maryland Employment Security MEMCO legislature prevent Administration, 280 Md. spread lighten its burden which 1086, 1093-94 case, (1977). Likewise in this crushing now so often falls with force enough say it is not upon the worker and his or unemployed reasons that were not his discharged for her family. The achievement of social Instead, make the fur “fault.” we must security requires protection against engaged ther determination that he greatest hazard of our economic life. “misconduct” as defined administrative can provided by encouraging be may unemploy rule before he be denied ployers provide more stable I do not believe this deter systematic ment and accumulation benefits. the record in this during periods employment funds mination be made on periods case. ment, maintaining purchasing power thus of the district ruling would affirm the limiting the serious social conse- court. poor relief assistance. The quences therefore, legislature, declares that in its OXBERGER, C.J., joins in this dissent. public good, considered general welfare of the citizens of this require state the enactment of this meas-
ure, state, under the police powers compulsory setting
for the aside of unem-
ployment reserves to be used for the ben- persons unemployed through
efit of no
fault of their own.