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


KENT L GOLL, Employee

FOREMOST FARMS USA COOP, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00605676WK


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 makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked over 12 1/2 years for the employer, a firm engaged in the production of dairy products. He was employed for the last 6 to 8 years as a general laborer providing first shift relief up to his last day on May 24, 2000, when the employer suspended him. The employer notified him on May 26, 2000 (week 22) that his employment was terminated for "sleeping while being on the clock" in addition to other outstanding disciplinary actions.

On January 7, 2000, the employer placed the employee on a 12-month probation for threatening and harassing conduct. In February of 2000 the employer gave the employee a probationary letter for 9 absences in the last ten months, including five on Fridays and two on Saturdays. He was notified his attendance had to improve.

The employee was a member of a bargaining unit. The labor contract required the employees to punch in and out for their two-20 minute paid breaks per shift. In the past, he had failed to do so, because he considered he had an agreement with a member of management, his immediate foreman, which relieved him from that responsibility. On May 20, 2000 the employee left the premises on a number of occasions to see his doctor while still punched in. The employer's general manager warned him on March 28, 2000, that he must punch in and punch out for breaks and when he left the facility, or his job could be at risk.

On May 24, 2000 at 9:10 a.m. the employee's supervisor observed him in a sleeping position in the breakroom. The supervisor banged on the table to arouse him. He explained that he had pain in his arm and had fallen asleep. The supervisor asked if he was punched out. He admitted that he had failed to punch out. He initially explained that he was only dozing and denied that he was sleeping. Later, he conceded that he may have been sleeping. After consideration of his prior discipline history, he was notified of his suspension on May 24, and terminated by a letter dated May 26. The employer's rules do not specifically list sleeping as a work rule violation, but merely states that if the worker has idle time "it is the worker's responsibility to make a contribution to the organization elsewhere."

The issue to be decided is whether the employee's actions which led to his discharge rose to the level of misconduct connected with his work.

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 initial question is whether the employee was acting intentionally when he fell asleep at work. The employee's supervisor acknowledged that if a worker were trying to go to sleep without being observed the breakroom would not be the place to be at. The employer did not demonstrate that the employee intentionally fell asleep at work. As the commission recently noted in Seelow v. Scapa Rolls (Neenah) LP, UI Dec. Hearing No. 00403067AP (LIRC Dec. 20, 2000):

"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."

The employee did receive warnings for prior conduct. However, the warnings were received to show the warnings were given not that the employee was guilty of the conduct for which he was warned.

The employee had worked for years under an agreement that excepted him from the requirement that he punch in and out for breaks because he performed a variety of tasks. The employer changed such agreement and required that the employee punch in and out. The employee admittedly failed to consistently punch in and out for breaks. However, the employee had been given permission to rest his arm when needed. The employer did not anticipate that the employee would rest his arm in the breakroom but the employee believed it was permissible to do so. The employee did not consider that he was on his scheduled 20-minute break but was merely resting his arm as he had been given permission to do.

The commission therefore finds that in week 22 of 2000 the employee was discharged from his employment but not for misconduct connected with his work within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 22 of 2000, if he is otherwise qualified.

Dated and mailed February 13, 2001
gollken.urr : 132 : 1 :  MC 659.02  MC 697

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission did consult with the administrative law judge regarding witness credibility and demeanor. The administrative law judge did state that the employee previously had an agreement that with his foreman that he did not have to punch in and out for breaks. The administrative law judge believed that the employee's actions resulted from the combination of alcohol he consumed off work, an early work day, medication he was on, and his tired and aching arm. The administrative law judge noted that the employee considered that he was merely taking a temporary rest. The commission, however, does not agree that these factors indicate intentional conduct on the part of the employee to fall asleep or fail to punch out before entering the breakroom.

cc: ATTORNEY DANIEL R SCHOSHINSKI
SCHNEIDMAN MYERS

ATTORNEY MICHAEL W QUICK
MICHAEL BEST & FRIEDRICH

 

PAMELA I. ANDERSON, COMMISSIONER (dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. The employee was fired for sleeping on the job while not being punched out. The employee had been warned to punch out for his breaks on March 28th. The employee did not tell a supervisor that his arm was bothering him. The contract allowed the employee to take two twenty minute breaks. The employee extended his break by sleeping longer than his breaks. After he feel asleep on his first break he should have been on notice that he needed to have someone watch him so he would not extended his break if he fell asleep a second time

The employee had a workers compensation claim. He testified " I had a work injury. After that happened, when I first started seeking treatment for my elbow and before 5/24 Mr. Vandenhugel told me that I could rest my elbow, but to try and find him first. On 5/24 I didn't talk to Mr. Vandenhugel or Blake Towey when my arm started bother mine (sic) because I couldn't find them." Later the employee testified "I didn't tell Mr. Vandenhugel or Mr. Towey that I went into the breakroom because my arm hurt because I didn't think they were around." Question - "But, there's always some supervisor around at that time on your shift, correct?" "Alright. I made a little effort to seek out a supervisor that day. They're constantly walking around doing their job, so they're not always in 1 spot."

The employee testified "I agree that I punched in and out three times on 5/23 besides my start and stop times. I agree that in weeks prior to that, but after my meeting with Mr. Walker that I was punching in and out on my breaks. I understood that I had to do that.I understand why I have to punch out for breaks. I agree that people should not be able to just take breaks whenever they want and be paid for them."

The employee was on a one year probation so he should have known his job was in jeopardy. I believe his failure to punch out or notify a supervisor that his arm was bothering him, then falling asleep twice without a means to return to work in a timely fashion shows a disregard of the employer which rises to the level of misconduct connected with his employment. I do not believe the employee made any effort to find a supervisor and I have some doubts about how much his arm was bothering him that day. I do believe that the employee was very upset about being cut off on his workers compensation claim that may have related to his sleeping. So I agree with the administrative law judge and would affirm his decision.


____________________________________
Pamela I. Anderson, Commissioner


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uploaded 2001/02/14