LESTER L THOMPSON, Employee

CARNES CO INC, Employer

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:

The employee worked for almost 38 years, most recently as a full-time maintenance mechanic for the employer, a manufacturer of heating and air distribution equipment. His last day of work was March 8, 2001 (week 10) when his employment was suspended.

On March 5, 2001 (week 10), the employee was observed improperly using a forklift. Specifically, he had raised a tabletop off a welding table to make repairs on the base. The top was not secured to the lifts. Although he initially lowered the lifts and tabletop when he started working on the base, he then raised it in the air so it would be out of the way and he could work under it. This was contrary to the safe operation procedures of the forklift. The employee was notified of his unsafe practice. The employee admittedly failed to adhere to safety standards when working on the forklift. The employee engaged in the action in order to get the job done more quickly. The employee knew he was not following the rules but he was in a rush in order to get other work done. The employee previously received a disciplinary notice, Exhibit I, in December of 1998 for leaving a forklift unattended with the forks suspended in the air.

As a maintenance mechanic for the employer, the employee not only punches in and out of work to record his time for payroll purposes, but is also supposed to complete a daily labor ticket to establish on what machines he is making repairs during his shift. He is to record the shop order number and the amount of time he is working on a particular piece of equipment. These labor tickets are then used within the business to "charge" one department's time to another and the information is used to determine profitability. The employer began to scrutinize the employee's charging behavior when a department supervisor questioned the amount of maintenance work charged to his department. In particular, the supervisor knew the employee did not work upon a particular piece of equipment on February 28, 2001, yet he recorded working on the equipment on the labor ticket. An investigation was started and the employer discovered that the charging of 5.5 of the employee's hours on February 28 was incorrect. It considered this behavior falsification and a violation of its work rules.

The employee's employment was suspended on March 8, 2001, pending investigation. After the suspension began the employer's human resource manager spoke with the employee seeking an explanation for the inaccurate ticket. The employee gave a variety of different explanations for the inaccurate ticket. The employee explained that the 5.5 hours was from banked time from previous workdays when he did work on the machines in question. Tr. 56. The employee also stated he wrote the number down wrong from the machine or misread the number from his machine number book. Tr. 56-58; 60. The employee also stated that he did not write down all the machines he worked on because he would have more than one labor ticket. Tr. 56-57. Finally, on another occasion he indicated he took credit on his ticket for maintenance work performed by the machine operator. Tr. 84-85.

After investigation the human resource manager discovered that the work the employee claimed to have performed on February 28 was in fact done by other men in his department or was performed by the employee but had already been charged on previous workdays. Exhibit E. The machine numbers the employee claimed to have worked on were not close in sequence to the ones he charged time to on his labor ticket and were not next to each other on the list from his machine number book. Exhibit F; Tr. 30-31, 81. The numbers are clearly visible on the machines. The human resource manager could only verify one-half hour of the 5.5 hours in question. The remainder of time was unaccounted for.

After hearing the various explanations by the employee for the incorrect ticket, and further investigation, the human resources manager determined that the employee was being dishonest and discharged him on March 29, 2001 (week 13). The employer's work rules provide for discipline up to and including discharge for falsifying job cards and violating safety rules. Exhibit D.

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

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 employer established that the employee was not accurately recording time and work performed on his daily labor ticket. The employee's various explanations for the inaccurate recording, to the employer and at the hearing, lead to the inference that his conduct was intentional.

The employee's carryover explanation does not make sense. The contention that he did work on a machine on the 27th and carried it over on to the 28th still leaves time unaccounted for. The employee can only report 8 hours per day. Therefore, there is time unaccounted for no matter what day it is attributed to. Further, the fact is that the employee's ticket reflected work on machines that he did not work on because the machine operator did the work or the machines were out of service on the date the employee claimed he was working on them and carried them over to the next day. As for the multiple ticket explanation, workers routinely fill out more than one labor ticket. Tr. 58.

The employee's actions were detrimental to the employer's interests. The matter came to the human resource manager's attention by a supervisor who had been "called on the carpet" for his maintenance budget. Tr. 35-36. A supervisor's performance is judged and pay based, in part, on the supervisor's maintenance budget. The employer also uses the job tickets to do cash planning forecasts. For example, one justification for buying new equipment is how much maintenance is being done on it. Tr. 82. See also Tr. 125. Finally, in the employee's position he had considerable autonomy. The employer could no longer trust that the employee had performed the work reflected on his labor tickets.

The commission therefore finds that in week 13 of 2001 the employee was discharged from his employment and for misconduct connected with his work within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employee was paid benefits in the amount of $7,613.00 for weeks 14 through 28, and weeks 36 through 46 of 2001, for which the employee was not eligible and to which the employee was not entitled, within the meaning of Wis. Stat. § 108.03(1).

The final issue to be decided is whether recovery of overpaid benefits must be waived.

Wisconsin Statute § 108.22(8)(c), provides that the department shall waive the recovery of overpaid benefits if the overpayment was the result of departmental error, and the overpayment did not result from the fault of the employee. Under Wis. Stat. § 108.02(10e)(a) and (b), department error is defined as an error made by the department in computing or paying benefits which results from a mathematical mistake, miscalculation, misapplication or misinterpretation of the law or mistake of evidentiary fact, or from misinformation provided to a claimant by the department, on which the claimant relied.

The overpayment in this case results from the commission's reversal of the appeal tribunal decision. Such reversal was not due to department error as defined in Wis. Stat. § 108.02(10e)(a) and (b). Rather, the commission has reached a different legal conclusion when applying the law to the facts found.

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 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.

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 13 of 2001, and until seven weeks elapse since the end of the week of discharge and the employee has earned wages in covered employment equaling at least 14 times the weekly benefit rate which would have been paid had the discharge not occurred. The employee is required to repay the sum of $7,613.00 to the Unemployment Reserve Fund. The initial benefit computation (UCB-700) issued on March 12, 2001, is set aside. If benefits become payable based on work performed in other covered employment a new computation will be issued as to those benefit rights.

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 employee 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 November 21, 2001
thomple . urr : 132 : 1 : MC 630.09 MC 688.1

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

The ALJ found that the human resources manager testified that the employee's suspension in weeks 10 through 12 was not for further investigation but was actually a disciplinary action for the incorrect labor ticket and the forklift incident. The ALJ held that the employee had been penalized for those two incidents and the later discharge could not be for the same incidents unless further offense occurred that rose to the level of misconduct. However, Exhibit B, the suspension notice prepared by the human resource manager, states, "indefinite suspension pending a completion of misconduct investigation." Further, the employee's termination letter, Exhibit A, states that the employee was indefinitely suspended pending investigation. The human resource manager did testify at one point that the suspension was a discipline for the falsification and forklift incident. Tr. 26-27. However, her later testimony and the contemporaneous documents indicate that the suspension was pending investigation of the incidents. The human resource manager testified "both of these issues were independent grounds for discharge at the time of the suspension. However, I chose to just suspend his employment and review all of the records, go through the file materials and make a final decision. In the course of that investigation, some additional information came to light which was a factor in the suspension-excuse me, in the discharge-that was not known to me at the time of the suspension, your honor." Tr. 27, lines 15-19. See also Tr. 78. Finally, the employee testified that when he was given Exhibit B at the suspension meeting the human resource manager stated she would have to investigate. Tr. 180. The employee's testimony, the employer's testimony, and Exhibits A and B indicate that the suspension was pending an investigation. In light of the employee's long-term employment, the employer did not want to discharge him without further inquiry.

The ALJ found that the employee's statements to the human resource manager after his suspension did not rise to the level of misconduct. The ALJ found the employee credible that he was not intentionally lying to the employer. The commission did speak to the ALJ regarding witness credibility and demeanor. The commission does not find the employee credible, as he offered no consistent or logical explanation to the employer, or at the hearing, for the incorrect labor ticket.

The ALJ found that the employee "carried" over time and jobs from one ticket to the next. However, as noted by the employer, the employee only works 8 hours per day. It is not possible to carry over time.

Finally, the employee's suggestion at the hearing that his conflicting statements were due to a hearing problem does not explain his inability to provide a consistent and logical explanation for the inaccurate ticket at hearing in this matter. The transcript at 70-174, 182, 190-193, and 268-271 reflects the employee's attempts to explain his actions. He claimed that he was carrying time over. Tr. 167. He testified he filled out the job ticket in a hurry at the end of his day. Tr. 196, 204. The employee suggested the reason he indicated working on a machine in the maintenance room was that "maybe when I was looking for this welder that was in the book I come up with that number and figured that was the one of the machine that it was." Tr. 196. He did not record the number of the machine when working on it because he didn't have any paper with him. Tr. 198. He was upset and not thinking about what he was writing. Tr. 216.

NOTE: Repayment instructions will be mailed after this decision becomes final. The department will withhold benefits due for future weeks of unemployment in order to offset overpayment of U.I. and other special benefit programs that are due to this state, another 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 overpayment.

cc: 
Sheet Metal Workers Intl Assoc. AFL-CIO
Timothy M. Scheffler

[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]

uploaded 2001/11/26