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

CARMENZA L RINCON, Employee

BANK ONE WISCONSIN, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 01607055MW


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 about 7 and 1/2 years as a teller for the employer, a bank. Her last day of work was July 11, 2001 (week 28), when she was discharged.

The employer's attendance policy provides for discipline each time an employee is tardy three times over a three-month period. After the third warning, one tardy in 90 days is permitted. A worker is tardy if the worker arrives five minutes past her scheduled starting time.

The employee was tardy on a number of occasions in July and August of 2000. She received a written warning on November 2, 2000, for incurring 8 instances of tardiness in October ranging from 10 to 39 minutes after her start time. After the November 2 warning she was tardy three times in December of 2000, and once in January of 2001. The employee received an evaluation on January 31, 2001, which stated that she had past problems with tardiness but had shown improvement.

The employee was not tardy in February or March of 2001. However, the employee was tardy five times in April ranging from 7 to 32 minutes. The employee was tardy by 15 minutes on May 3. On May 3 the employee received a written warning that her tardiness was not acceptable. The warning noted that making up her time did not change the fact that her late arrivals affected customer service since no one was there to answer the telephone. The employee was reminded that she could have no more than three tardies per month in the next three months.

The employee was tardy on May 16, May 22, and June 15. On June 18 the employee received her final written warning. At that stage, per the employer's policy, she was subject to discharge if she was tardy in the next 90 days. She was warned that failure to adhere to the employer's guidelines would result in her discharge. The employee was 42 minutes late on July 7 and was discharged.

The employee was late on July 7 because she received a call that her grandmother, who lives overseas, was having a heart attack. The employee then made telephone calls to try to find out her grandmother's condition and to contact her relatives about her grandmother.

The employee attributed most of her 2000 tardiness to problems with her 1990 Mercury automobile. The problems began in the spring of 2000 and worsened towards the fall of the year. In November she got a ride to work with friends. In December she took some days off looking for a vehicle. She attributed her December tardiness to bad weather. Once in December she took the bus to work but it took two hours and she arrived late.

The employee attributed her May and June tardiness to road construction. The employee lived in downtown Milwaukee and worked in Menomonee Falls. It would take her 30 to 45 minutes to get to work. There was construction on 94/45 North beginning in March or April. She attributed all her tardiness in April to road construction. After receiving the May warning she took an alternate route to work. It took her longer but she was able to get to work on time. On May 22 she was 15 minutes late because the ramp on Silver Spring was closed 5 minutes ahead of schedule.

The issue to be decided is whether the employee was discharged for misconduct connected with her 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' with in the meaning of the statute.

Generally, the commission considers occasional transportation problems or unavoidable delays due to traffic or construction to constitute valid reasons for being tardy. However, at some point repeated ongoing tardiness for the same reason must be considered avoidable. The employee reached that point. It was the employee's responsibility to arrange for reliable transportation. When the employee's car would not start the second time she should have immediately taken steps to insure that she arrived to work on time. She did not ask co-workers for rides to work until November. The employee acknowledged that she could have gotten rides earlier.

Construction is not unexpected in Wisconsin during the summer months. The employee should have left home earlier, or later, or gone a different route if the construction placed her at risk of being tardy. The employee did not take steps to insure her prompt arrival at work until she was going to be or had been disciplined. Attributing a half dozen late arrivals in one month to construction is excessive.

Finally, the focus is not on the last instance of tardiness, but on the employee's overall record. The employee had gone through the warning steps set forth in the employer's policy. The employee would not have been subject to discharge on July 11 if she had not been tardy in the past.

The commission therefore finds that in week 28 of 2001, the employee was discharged for misconduct connected with her work within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employee was paid benefits in the amount of $7,878.00 for weeks 29 through 52 of 2001 and weeks 1 and 2 of 2002, 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).

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.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 28 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 $7,878.00 to the Unemployment Reserve Fund. The initial benefit computation (UCB-700) issued on July 16, 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 March 12, 2002
rincoca . urr : 132 : 8 : MC 678

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner

MEMORANDUM OPINION

The commission did consult with the ALJ regarding witness credibility and demeanor. The ALJ found the employee credible as to the reasons offered for her tardiness and in particular her last instance of tardiness. The commission has not reversed the ALJ based on a differing impression of witness credibility.

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: 
Bank One Wisconsin - Menomonee Falls, WI 53051
Continental Consultants
Deanna J. Blaisdell


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uploaded 2002/03/14