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


ROBERT L BROWN JR, Employee

BROCKSOPP ENGINEERING HEAT TRANSFER PRODUCTS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00606006RC


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 employee is eligible for benefits beginning in week 24 of 2000, if otherwise qualified.

Dated and mailed October 30, 2000
brownro.usd : 105 : 1 MC 660.01

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

The employer first asserts in its petition that the employee was often late to work and late returning to work from lunch. The commission itself does not take factual evidence, however; its review of a case is based upon the record made before the administrative law judge. To the extent that the employer makes factual assertions not supported by evidence in the hearing record, therefore, the commission may not consider the petition for review. The evidence from the hearing record establishes only two instances of tardiness by the employee, one due to the employee's alarm not having gone off and the other due to the employee's having run out of gas. These two attendance failures, alone, do not establish misconduct with regard to the employee's attendance.

The employer also asserts that several work-related failures by the employee constitute misconduct by him. Generally, misconduct for unemployment insurance purposes is the intentional and substantial disregard by an employee of standards an employer reasonably may expect. The key requirement here is intentionality. Absent such intentionality, pursuant to case law misconduct can be found only if the failures by the employee indicate a culpability which "shows a wanton or deliberate disregard of his employer's interests or of [the employee's] duties." Boynton Cab Co. v. Neubeck, 237 Wis. 249, 261, 296 N.W. 636 (1941). This is the so-called gross negligence standard. In the same case, in discussing an instance where no misconduct was found, the court described an applicant who, while not deliberately careless, lacked the amount of concentrated care and attention to details which are essential to the makings of a mechanic. The record in the present case simply does not establish that the employee's failures were intentional failures on his part. Absent such a showing, though, the failures essentially have to meet the gross negligence standard in Wisconsin law. With regard to the employee's failures, there were sufficient mitigating factors to preclude such a finding.

For these reasons, and those stated in the appeal tribunal decision, the commission agrees with the administrative law judge's conclusion of no misconduct.

cc: JON P BROCKSOPP
BROCKSOPP ENGINEERING HEAT TRANSFER PRODUCTS INC


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