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

JEFFREY B JORDAN, Employee

CARLISLE TIRE & WHEEL CO, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 01602491MW


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 approximately one year as an assembler for the employer, a tire and wheel distributor. The employee's last day of work was February 1, 2001 (week 5) when he was discharged.

The employer alleges that the employee was discharged for falsifying his time card on January 16, 2001, January 18, 2001, and February 1, 2001, after reporting to work tardy on those days.

On the days the employee was tardy, he forgot to bring in his "swipe card," necessary to punch in. The employee reported his arrivals on the three days in question to human resources as required by company policy and asked personnel to punch him in on those days. The employee assumed he had been punched in at the time he arrived, not at the time his shift started. The person whom the employee reported his tardies to no longer works for the employer and did not appear at the hearing. The employee admitted that he was late on the days in question. The employee also admitted that he received full pay for January 16th and 18th despite being tardy by approximately three hours over those two days. When asked why he did not call this error to the employer's attention, the employee responded "it crossed my mind, but I wasn't going to question it." The employee's failure in this regard, in part, led to his discharge.

The issue for review is whether the employee's conduct constitutes misconduct within the meaning of Wis. Stat. § 108.04(5). 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' with in the meaning of the statute."

The employee admitted being tardy on January 16 and 18th and receiving full pay for days he did not completely work. The employee failed to correct this error or at the very least bring the matter to his employer's attention once he realized personnel punched him in earlier than his actual arrival time. The employee's failure constitutes an intentional disregard of the employer's interests and of the standards of conduct the employer had a right to expect of the employee.

The commission therefore finds that the employee was discharged for misconduct in week 5 of 2001, within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employee was paid benefits amounting to a total of $3,991.00 for which he is 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 employee 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), be cause although the over payment did not result from the fault of the employee 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 employee is ineligible for benefits beginning in week 5 of 2001, and until seven weeks have elapsed since the end of the week of discharge and the employee has earned wages in covered employment performed after the week of discharge equaling at least 14 times the employee's weekly benefit rate which would have been paid had the discharge not occurred. The employee is required to repay the amount of $3,991.00 to the Unemployment Reserve Fund.

Dated and mailed September 14, 2001
jordaje . urr : 135 : 1   MC 630.09

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

NOTE: Repayment instructions will be mailed after this decision becomes final. The department will with hold benefits due for future weeks of unemployment in order to off set over payment of U.C. and other special benefit programs that are due to this state, an other state or to the federal government.

Contact the Unemployment Insurance Division, Collections Unit, P. O. Box 7888, Madison, WI 53707, to establish an agreement to repay the over payment.



MEMORANDUM OPINION

The commission did not confer with the ALJ as to his credibility impressions. The commission does not disturb any credibility impressions made by the ALJ but rather is satisfied that the record supports a finding of misconduct based upon the evidence adduced at the hearing. The commission is satisfied that the employee admitted being late by at least three hours and failed to state anything to the employer after receiving full pay for the days he was tardy. Thus even though the employee believed he did not misrepresent his arrival time to personnel on those days, nonetheless he failed to bring the paycheck error to his employer's attention. For this reason, the commission reverses the appeal tribunal decision as a matter of law.

cc: 
Carlisle Tire & Wheel Co. (Wisconsin)
Continental Consultants


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