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

CHRISTOPHER J ANTIPOREK , Employee

CLEAN AIR SERVICE INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02001674WU


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 for nine months as a full-time air duct cleaner for the employer, a commercial and residential air-duct cleaning business. His last day of work was June 7, 2001 (week 23).

Prior to the employee's last day of work, his supervisor had spoken to him on numerous occasions about dissatisfaction with the employee's work performance. For example, the employee was warned on May 23. The employer has a van with only two seats. The employee was working with another individual. The owner dropped off a third person and told the employee to contact him when the job was finished and he would pick up the third person. The owner told the employee not to leave the job until the owner picked up the third person. The owner returned to the job site later and discovered that the employee and his co-workers had gone to a restaurant. The third person was seated in the back of the van. This was an unsafe practice.

On June 6, the employee was told to make sure all the equipment was clean for the next day. The employer came in and batteries and drills were not charged and the hoses were not oiled and a fitting that needed replacing had not been replaced. When the employer spoke to the employee about this, the employee stated that he forgot.

On May 23, the employee was warned several times for not following the safety policy, as he was not wearing safety glasses. In one hour's time, the employer had to tell the employee to put his glasses on six times. The employee would put the glasses on, but when the employer came back, the glasses were pushed to the top of the employee's head. When leaving his assignment on that day, the employee ignored a sign that stated that vehicles must stop and wait for the gate to fully close. He said, "signs, rules and regulations are meant to be broken." The employer told him, "not in this case." The employee kept driving and the employer told him to stop the vehicle and follow the signs. The employee did ultimately stop.

On May 22, they were at Lincoln Hills and the employee was warned about speeding in a company vehicle. The employer told him to slow down and he did for awhile but crept up over the speed limit. The employer reminded him to keep to the speed limit. The employer warned him, on that day, about wearing safety glasses. The employer warned him once or several times. It was an ongoing problem.

On June 5, the employee asked, at about 2:30 or 3:00 p.m. whether he could take off Friday, June 8 to take his wife to a doctor's appointment between 10:30 or 11:30. He did not say why but wanted the entire day off. The employer said there was work scheduled and they may be in the shop to do some training, and if so, it was possible. The employer said he could not guarantee anything. The employer then learned that the Friday jobs were cancelled so the employer told the employee he would see what he could do. However, Friday was rebooked. The employer asserted that the employee failed to follow company procedure in asking for time off, as he was to ask two weeks ahead of time in writing. The employer did not ask what the doctor's appointment was for.

The failure to provide timely notice of the doctor's appointment was not what prompted the discharge decision as that had been made several days before. This was simply "frosting on the cake."

The issue before the commission is whether the employee's discharge was for misconduct connected with his 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."

The employer contended that the employee's discharge was for misconduct connected with his employment. The commission agrees.

The commission agrees with the ALJ's conclusion that with regard to the last incident, the employee had a valid reason for being absent. The employee's decision to put his family first and take his wife to her medical appointment, when she needed him, was reasonable.

However, the employer specifically testified that the employee had not been discharged for this final incident, but for earlier incidents that for the most part involved the employee's failure to follow safety procedures. The employee endangered the safety of a co-worker by allowing him to ride on the floor of the van with the employer's equipment. If there had been an accident the co-worker would have no protection from this equipment.

The employee repeatedly failed to follow safety procedures on May 23. The employer had to repeatedly instruct the employee to wear his safety glasses. The employee also ignored a sign that instructed him to wait for a gate to fully close. On May 22, the employer repeatedly warned the employee to obey the speed limit. The employee was or should have been aware, given the employer's repeated instructions, that the employer expected reasonable safety policies to be followed. The employee deliberately disobeyed the employer's directive to call the owner when the job was finished so that the owner could pick up the co-worker. Instead the employee drove that co-worker to a restaurant despite the fact that there were only two seats in the van. The employee's actions in willfully ignoring the employer's safety rules demonstrated such a wilful and substantial disregard of the employer's interests as to constitute misconduct connected with his work.

The commission therefore finds that in week 23 of 2001, the employee was discharged for misconduct connected with his employment within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employee was paid benefits for weeks 25 through 29 and weeks 40 through 52 of 2001 and weeks 1 through 5 and 10 through 44 of 2002, amounting to a total of $13,942.00 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 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), 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 23 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 sum of $13,942.00 to the Unemployment Reserve Fund.

Dated and mailed November 15, 2002
antipch . urr : 145 : 8   MC 688.1 MC 695

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner

MEMORANDUM OPINION

The commission discussed witness credibility and demeanor with the ALJ who held the hearing. The ALJ indicated that she did not find the owner credible when he testified that June 8 was not a factor in the discharge decision. The ALJ believed that the owner was not happy with the employee and was trying to find a replacement but did not want to let the employee go until he found a replacement. The ALJ also believed that the employee did not consider the employer's warnings to be serious, as he was not told that his job would be in jeopardy if he failed to heed those warnings. Given that the warnings were often related to safety, and were repeated more than once, the commission finds that the employee was or should have been aware that his job was in jeopardy if he continued to disregard those safety policies. Further, the employee's failure to follow the employer's specific instructions with regard to the co-worker was insubordinate.

The ALJ also noted that the employee was credible because he made certain admissions. For example, he admitted that he was speeding or that he was not wearing his safety goggles when he knew that he should be wearing them. The commission views this differently. The employee admitted that he was aware that he should not be speeding or that he should be wearing his safety goggles but deliberately disregarded the employer's directives for his own convenience.

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.


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uploaded 2002/11/22