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


WALTER F SEELOW, Employee

SCAPA ROLLS (NEENAH) LP, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00403067AP


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, except that it makes the following modifications:

Paragraph 7 of the appeal tribunal's FINDINGS OF FACT AND CONCLUSIONS OF LAW is deleted.

DECISION

The decision of the administrative law judge, as modified, is affirmed. Accordingly, the employee is eligible for benefits beginning in week 37 of 2000, if otherwise qualified.

Dated and mailed December 20, 2000
seelowa.umd : 105 : 1  MC 659.02

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

The commission has modified the appeal tribunal decision in this case, to delete the administrative law judge's acceptance of the employee's absences from his work station on August 14, 2000. Although the commission ultimately agrees with the appeal tribunal's conclusion regarding the incident, that those incidents did not establish misconduct by the employee, it remains the case that the employee's explanation for the absences is weak. That weakness does not translate into a finding of misconduct, however; it remains an employer's evidentiary burden to establish misconduct in an unemployment insurance matter.

The ultimate issue is whether the incident precipitating the discharge was the intentional disregard by the employee of standards an employer reasonably may expect of its employees. It should go without saying that employers reasonably may expect that their employees not be sleeping on the job. But such instances still must be intentional conduct by an employee, and the record in this case indicates that it was not. The courts recently have rejected an interpretation of the misconduct statute which would automatically ascribe misconduct to an incident of falling asleep. In keeping with this, the commission has distinguished the situation where, for example, an employee hides himself in order to sleep and not be caught, from a situation where an employee inadvertently falls asleep. Clearly, this is an instance of the latter. The employee was sitting in a chair in the work area, with the lights on, waiting for co-workers to return with solvents to continue cleaning parts of a tank on the third floor of the work site. The employee also was on medication for gout which can cause drowsiness, and the employee and union steward both testified as to the presence of fumes in the area. Although the supervisor denied smelling fumes when he found the union steward and brought him upstairs to observe the employee sleeping, the supervisor did not deny the employee and steward's testimony that the next day workers in that area were wearing respirators.

Based upon the above factors, the commission cannot conclude that the employee's falling asleep was intentional. Instead, the record indicates that it was inadvertent and, as such, not misconduct for unemployment insurance purposes.


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