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


FRANK J MORALES, Employe

PRIME CARE HEALTH PLAN, Employer

UNEMPLOYMENT COMPENSATION DECISION
Hearing No. 97605882MW


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 the applicable law, records and evidence in this case, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked about ten years as a service associate for the employer, a health insurance company, however, the company was under new ownership as of June 1, 1997. His last day of work was on July 29, 1997 (week 31), when he was discharged.

The issue to be decided is whether the employe's discharge was for misconduct connected with his employment.

The employe was scheduled to work from 9:00 a.m. until 5:00 p.m. On July 25, the employe noted on his time card that his arrival time was 9:00 a.m. The employer's business manager walked into the employe's work area at about 9:15 a.m. but the employe was not at his desk. A co-worker told the business manager that the employe had not arrived for work yet. The business manager saw the employe arrive at 9:19 a.m.

The employer uses a fob key entry, and the exact time of entry is entered when the card, with an identification number is swiped through an electronic eye. The employer's records indicate that the employe swiped his card at 9:19 a.m. There was no record of the employe swiping his card at 9:00 a.m. The employer determined from this that the employe had not arrived at work until 9:19 a.m. but had written an earlier time on his time card.

The employe had been warned about time card violations as well as attendance problems on June 6, 1997.

The employer discharged the employe for writing an arrival time on his time card that was earlier than the time he actually arrived.

The employe asserted that he did in fact arrive at work at 9:00 or 9:01 a.m. and that he went to his car and returned about 9:19 a.m. He believed that he may have been getting change for a soda from his car, and that he may have been in the cafeteria at 9:15 a.m. or so. He testified that he felt that he was present at work but away from his desk. He suggested that smokers who stood outside to smoke might have been coming out of the door at the time he arrived, and therefore he might not have needed to use his fob key.

The commission cannot credit his testimony and finds that the employe did not arrive at work until around 9:19 a.m. The employe's testimony with regard to his whereabouts was vague. Further, it seems unlikely that he could come in the front door at 9:19 a.m., go to the cafeteria and get a soda from a machine and still get to his work area at 9:19, which is the time the supervisor testified she saw the employe come in. In addition, the employe believed he was getting a soda at about 9:15, which is four minutes earlier than the time that he allegedly returned to the building. The employe did not inform the employer, at the time of his discharge that he was getting a soda. Under the circumstances, the commission cannot credit the employe's assertion that he arrived at work, initially, at 9:00 a.m.

While the employe was only 19 minutes late for work, which might not amount to misconduct, the commission considers that inaccurate time reporting to be very serious. The employe had been warned about accurately reporting his time on a prior occasion. The commission finds that the employe's falsification of his time card amounted to such a wilful and substantial disregard of the employer's interests as to amount to misconduct connected with his work.

The commission therefore finds that in week 31 of 1997 the employe was discharged for misconduct connected with his employment within the meaning of Wis. Stat. § 108.04 (5).

The commission further finds that the employe was paid benefits for weeks 32 through 52 of 1997, amounting to a total of $6,380.00 for which he was not eligible and to which he is not entitled, within the meaning of Wis. Stat. § 108.03 (1). Pursuant to Wis. Stat. § 108.22 (8)(a), the employe is required to repay such sum to the Unemployment Reserve Fund.

The commission further finds that waiver of benefit recovery is not required under Wis. Stat. § 108.22 (8)(c), because although the overpayment did not result from the fault of the employe as provided in Wis. Stat. § 108.04 (13)(f), the overpayment was not the result of a department error. See Wis. Stat. § 108.22 (8)(c)2.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employe is ineligible for benefits beginning in week 31 of 1997, and until seven weeks have elapsed since the end of the week of discharge and he has earned wages in covered employment performed after the week of discharge equaling at least 14 times his weekly benefit rate which would have been paid had the discharge not occurred. He is required to repay the sum of $6,380.00 to the Unemployment Reserve Fund.

For purposes of computing benefit entitlement: Base period wages from work for the employer prior to the discharge shall be excluded from any computation of maximum benefit amount for this or any later claim. If the employe was also paid base period wages from work by other covered employers, the excluded wages shall be used to determine benefit eligibility. However, any benefits otherwise chargeable to a contribution employer's account shall be charged to the fund's balancing account.

Dated and mailed: August 26, 1998
moralfr.urr : 145 : 8 MC 630.09

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission has re-issued its January 16, 1998 decision in this matter pursuant to an August 13, 1998 Order by the Circuit Court for Washington County directing that the commission prepare a memorandum opinion supplementing its decision to comply with the mandates of Pieper Elec. Inc. v. Labor and Industry Review Com'n, 118 Wis.2d 92, 346 N.W.2d 464 (Ct. App. 1984), and specifically, to explicitly state the reasons why it came to a different conclusion regarding the credibility of witnesses than that of the appeal tribunal and why it came to a different conclusion on the issue of benefits for Mr. Morales than the appeal tribunal.

On December 18, 1997, prior to issuing its original decision in this matter, the commission consulted with the Administrative Law Judge (ALJ) who presided at the hearing in this matter, in order to obtain his impressions as to demeanor and credibility of the witnesses.  In this consultation, the ALJ indicated to the commission that he understood that the employe had hedged and been hesitant in his testimony, and he stated that he agreed with the commission that the employe was not straightforward and was not clear enough in his testimony.  The ALJ also expressed the view that the employe was probably not a credible witness.  However, the ALJ explained to the commission that he arrived at the result he did because the employer did not have any witnesses who could testify that they saw when the employe came in from the outside.

Thus, the ALJ's decision to credit the employe's testimony that he arrived at work on time, was not so much because of a strong belief in the employe's credibility as it was because of a belief that the employer did not prove that the employe arrived late.

The commission understood, as did the ALJ, that the employer bears the burden of proof to establish facts constituting misconduct, see, Consolidated Construction Co., Inc. v. Casey, 71 Wis. 2d 811, 820, 238 N.W.2d 758 (1976).   However, unlike the ALJ, the commission believed that the evidence met the employer's burden.  In particular, the fob key entry system records showing no entry by the employe at 9:00 A.M. while there was an entry by the employe at 9:19 A.M., as well as the business manager's observation that the employe was not in the office at 9:15 A.M., were both viewed by the commission as strong evidence that the employe did not arrive until 9:15 A.M.  That evidence was corroborated by the testimony that a co-worker told the business manager at 9:15 A.M. that the employe had not arrived yet. (1)

The commission believed that, absent credible rebuttal by the employe, this evidence sufficed to carry the employer's burden of proving that the employe, who had written an on-time arrival on his time card, had actually arrived later.  For the reasons discussed in the commission's original decision, however, the commission felt that the employe's attempts to rebut this evidence were not credible.


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Footnotes:

(1)( Back ) Practice and procedure in unemployment insurance hearings is governed by rules established by the department, see, Wis. Stat. § 108.09(5)(a).  These rules provide that the rules of evidence are not controlling in such hearings, and that hearsay evidence is admissible if it has reasonable probative value.  Wis. Admin. Code § ILHR 140.16(1).  The only limitation with respect to hearsay evidence is that no finding made in disposition of an issue may be based solely on hearsay unless it is admissible under ch. 908, Stats.; therefore, it may be considered when it is merely corroborative.

cc:
DIANE KINZTOGL
UNITED HEALTH CARE

WRAY VASSAR
CONTINENTAL INVESTIGATIONS AND SECURITY LTD

ATTORNEY SCOTT F. ANDERSON