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

NATHAN R BURCH, Employee

SYLVIAS EAGLE XPRESS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 01606474MW


By decision dated October 24, 2001, the commission affirmed a decision of an administrative law judge, holding that the employee's discharge was not for misconduct connected with his employment, and that he was therefore eligible for benefits. The employer objected to the commission's decision in a letter dated October 25, 2001. The commission treated the letter as a request for reconsideration of the commission's decision. Pursuant to statutory authority, the commission set aside its decision, in an order dated November 15, 2001, in order to give the case further consideration. The commission has again carefully considered all the testimony and exhibits. On December 5, 2001, the commission conversed by telephone conference call with Administrative Law Judge Steven Glick, who held the hearing in this case, for the purpose of discussing whether any credibility issues affecting the evidence could assist the commission in arriving at a final decision. Transamerica Ins. Co. v. ILHR Department, 54 Wis. 2d 272, 283-284 (1972).

Based on the review and reconsideration, and for the additional reasons appended to this decision in the Memorandum Opinion, the commission hereby reinstates its decision dated October 24, 2001, adopting and affirming the findings and conclusion in the appeal tribunal decision as its own.

DECISION

The commission's decision dated October 24, 2001, is reinstated. The decision of the administrative law judge is affirmed. Accordingly, the employee is eligible for benefits beginning in week 28 of 2001, if he is otherwise qualified.

Dated and mailed December 11, 2001
burchna . upr : 180 : 9  MC 665.04   MC 688  MC 699.05 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner



MEMORANDUM OPINION

The condonation rationale the employer so vehemently contests in this case is based on the fact that some behaviors that are to be expected in the workplace are self-evident, but that others are not so readily apparent. Further, for those expected behaviors which are not self-evident, the employer must communicate its expectations before it may discipline for their violation. The employer here treats as obvious the fact that getting to work on time was one of its reasonable, and self- evident, expectations. However, at least for a period between roughly late March and mid-June of 2001, when the employee's supposed starting time was 10 a.m., the record shows he started after that time, often up to an hour or more beyond, more frequently than he started at or before 10:00. During all that time, there was no objection by the employer, either verbally or in writing, as far as the hearing record shows. Under such circumstances, it may not have been unreasonable for the employee to have concluded that his starting time was flexible rather than fixed, or at least that the employer would tolerate some leeways in his starting and ending times. For most of the days he started after 10:00, he also worked at least eight hours, and therefore had an irregular quitting time as well as starting time, frequently working until 7:00 or 8:00 p.m. or so. In work settings where failure to be at a work station at a given starting time, such as on a production line, or when relieving another worker, such as a posted security guard, is crucial, perhaps arriving late can be obviously objectionable. But in many work settings, it may be satisfactory to put in the hours for each pay period on a rather relaxed schedule, so long as all the scheduled hours are worked and the work is accomplished. Here, in the commission's view, the employer needed to communicate its expectations regarding being to work "on time" much more emphatically than it did in order to consider the employee's failure to do so as misconduct. It may well have been the case that the employee fully realized he was not meeting the employer's desires as to punctuality, but, on this record, the commission cannot particularly fault him for failing to alter his behavior as to starting times when the employer did not really object, and he regularly "put in his time." The commission recognizes that the employee essentially did acknowledge that his starting time was 10:00. He weakly explained his record by asserting that the employer had at one point discussed hiring another mechanic and possibly changing the employee's start time to noon, and therefore he was actually starting early. The contingency of the hiring of the other mechanic never occurred, however. The ALJ did not believe the employee honestly believed that his starting time had ever become noon, and neither did the commission.

During the period preceding the change to a 10:00 a.m. start time in March 2001, when the employee's starting time was 9:00, the employer's record (exhibit 2) denotes several incidents of "late" arrivals in January and February 2001. However, many of such "lates" are only for a few minutes. There is also a technical matter of linking incidents of tardiness which preceded the employee's layoff for an indefinite period starting in late February 2001 with tardinesses occurring after he returned to work later in March. For unemployment insurance purposes, a layoff for an indefinite period severs the employment relationship, and subsequent employment is actually a new hire and new period of employment. The discipline cycle thus in effect starts over with the new period of hire, unless the employee is given a warning at the time of being placed back to work that prior warnings will be considered in invoking future discipline. (See, Pabst Brewing Co. v. DILHR and Pate, Circuit Court for Dane County, Case No. 149-159, August 9, 1976).

In the week starting June 11, 2001, the employer changed the employee's starting time to 7:00 a.m., to avoid having the employee in the shop later in the day when others were gone and because of concerns that he was working during those times on personal things and not being productive. Between that change and the date of the employee's discharge on July 9, 2001, the employee had regular difficulty complying with the earlier starting time, largely due to problems with the baby-sitter for his seven year old daughter arriving late. Around half of those late arrivals were for no more than ten minutes. The record suggests he had permission from one of the partners to go back to an 8:00 a.m. starting time for July 5th and 6th, days on which he arrived at work at 8:04 and 8:10. Here again, though, except for a three-day suspension for having failed to call in prior to the start of his shift for an absence due to the flu on June 20, the employee received no warnings that his job was in jeopardy prior to being discharged on July 9th after his last day of work on July 6th. The employee offered as exhibit 4 a note he says he gave to the employer's predecessor's dispatcher and office manager in December of 1999, explaining his need for a 9:00 a.m. or later starting time due to his need to get his daughter to school or childcare. The employer's president who testified at the hearing had not seen that note before. Similarly, the employer offered exhibit 3, dated October 12, 2000, acknowledging the validity of the employee's excuses for being late, but stating an expectation that he be at work at the same time every day. The write-up also instructed the employee to get with the dispatcher and decide what time he could regularly report to work and to make that his permanent start time. The employee did not sign for having received that write-up and testified that he had not seen it prior to the hearing. The ALJ did not resolve the credibility question of whether the employee may have received that write-up, instead resolving its significance based on its timing having occurred in the period of employment preceding the return to work after the layoff for an indefinite period, and on the so-called linking issue referred to above.

The employer's representative at the hearing, Steve Bloodworth, the company president, testified that his partner gave the employee a written warning around three weeks prior to the discharge, but that Bloodworth could not find the write-up and was not present when it was given. The employee denied receiving any such warning, and further stated that he had no verbal warnings at all between June 2000 and June 2001. Thus, for all practical purposes, the only warning of record is the conceded suspension for failing to call in sufficiently prior to the 7:00 a.m. starting time on June 20, 2001, a matter that the employee discussed with the partner, not the president who testified at the hearing. In the commission's view, the employee's record as to his start times for work was not so inherently objectionable given all the other circumstances as to automatically amount to wilful and intentional disregard for the employer's interests, in the absence of clearer instruction that continuation of the problem would not be tolerated.

The other reason besides tardiness for the employee's discharge consisted of two incidents of working on co-workers' cars during work time. The employer placed the latest incident around one week prior to the discharge, and the earlier incident around one month prior. The employee denied performing such work before punching out. Another worker, Moreno, testified to observing the last incident, placing in question the employee's explanation that it occurred later than Bloodworth and Moreno testified they observed it, and after he punched out. The employer's recollection of the first incident was not specific as to the date or the duration. The ALJ indicated to the commissioners that he placed more emphasis on the employer's not having done anything about these incidents than on the credibility or incredibility of the employee's denials of them. Moreso than arriving at work after the scheduled starting times when doing so has not been objected to, working on personal or non-work projects while "on the clock" may be the kind of behavior that is self-evidently objectionable. In this instance, too, though, the commission believes that the two incidents, even when combined with the "tardiness" record, do not, without more certainty as to the exact circumstances, amount to such conduct as constitutes misconduct for unemployment benefit purposes. The employer directly observed the infractions yet did not mention either one of them to the employee before including them as grounds for discharge.

In all but the most serious of offenses, the employer has an obligation to warn an employee, thus giving the employee an opportunity to improve prior to being discharged, before a finding of misconduct will be made for unemployment insurance purposes. Wiersma Trucking, Inc. v. LIRC and Cvikel, Circuit Court for Waukesha County, Case No. 00-CV-486, October 13, 2000.

The commission can easily understand the employer's frustration with the employee's continual inability to maintain a consistent starting time, as well as its ultimate decision to discharge based on it. However, in the absence of a better record of warnings or discipline, the commission is unable to conclude that the employee wilfully, intentionally and substantially violated standards the employer had a right to expect of him.

(The employer's right to appeal to court runs from the date of this decision rather than from the earlier decision here being reinstated.)


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