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


LEE A VESELY, Employe

POWDER TECHNOLOGY INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 95004904WU


On October 13, 1995, the Department of Industry, Labor and Human Relations issued an initial determination which held that the employe was discharged for misconduct connected with his employment. The employe timely filed a request for hearing on the adverse determination, and hearing was held on November 29, 1995 in Wausau, Wisconsin before a department administrative law judge. On December 11, 1995, the administrative law judge reversed the initial determination of misconduct. The employer timely petitioned for commission review of the adverse appeal tribunal decision, and the matter now is ready for disposition.

Based upon the applicable law and the record and evidence in this case, and after consultation with the administrative law judge regarding credibility matters, the commission issues the following : 

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe in this case worked approximately a year as a pre-mixer for the employer, a powder coatings manufacturer. His last day of work was September 29, 1995 (week 39), at which time he was discharged by the employer for attendance failures, production errors, and conduct the employer believed bordered on insubordination. The commission believes the employe's attendance failures and production errors, taken together, amount to the intentional and substantial disregard of an employer's interests which is misconduct for unemployment compensation purposes. The commission therefore reverses the appeal tribunal decision.

The employe received several unsatisfactory performance reports, for various production errors. On February 10, 1995, he failed to check off the materials he had added to a batch he was mixing. The check-off procedure is so that co-workers will know what stage of the process employes are at, in mixing the materials in question. On April 8, 1995, the employe received an unsatisfactory performance report because he was not putting the right amount of resin in batches he was mixing. Indeed, the employe was more than 100 pounds off, in his measurement. The batch ticket the employe was working from, stated that the employe was to mix in 275 pounds of resin; the employe was mixing in only 165 pounds. On April 12, the employe received another report, for improperly coloring a batch. On May 31, the employe received another report for not checking off an ingredient he had added to a mix. Finally, on August 8 the employe received an unsatisfactory performance report, for checking off an ingredient but not adding it to the batch he was mixing.

The employe's attendance record is as follows. He was absent for personal reasons on December 7, 1994 and May 20, 1995. He left work on December 22, 1994 and May 4, 1995 due to illness. He was absent due to illness on January 4 and March 10, 1995. Finally, he was absent because of problems with his truck on May 10, 1995. The employer did not count against the employe the times he left work early due to illness or his pre-approved August 10-11 absence due to dental surgery.

The employe's tardiness record in particular was excessive. On January 12, 1995, the employe was 30 minutes late because he slid into a ditch on his way to work. On January 30, he was approximately 27 minutes late because his snowmobile fell of his trailer. On April 22, the employe overslept and was 45 minutes late to work. On June 6, the employe was late because he locked his keys in his house. On June 27 the employe's alarm did not go off, causing him to be 30 minutes late to work. The employe was approximately 20 minutes late on August 8, after oversleeping. The employe again was late on August 25; he had a flat tire on the way to work.

Following the August 25 failure, the employe received a written warning on August 31 for having had two instances of tardiness within the preceding 30 days (pursuant to the employer's attendance policy to that effect). The employe subsequently received a last-chance warning on September 11, 1995, which in effect required the employe to immediately improve his performance, attendance, and attitude. The employer believed the employe's attitude was an issue, because of several minor disputes the employe had gotten into with co-workers. The incident precipitating the employer's discharge of the employe was the employe's tardiness on September 27, 1995. The employe's tardiness on that date was due to illness and, indeed, the employe was ill while at work.

Misconduct for unemployment compensation purposes is the intentional and substantial disregard by an employe of standards an employer reasonably may expect of its employes. Although mere inefficiency or ordinary negligence in isolated instances does not constitute misconduct, a pattern of such negligence may be sufficient to show such an indifference to the employe's responsibilities to his or her work as to constitute misconduct under sec. 108.04 (5), Stats. The commission believes the employe's attendance and production record meet this standard. The employe committed several kinds of production errors he reasonably should not have committed, and he offered no mitigating circumstances for his commission of those errors. The employe's attendance failures also reflect a substantial disregard of the employer's legitimate interest in having the employe report to work as scheduled. There is no indication that the employe's December 7, 1994 and May 20, 1995 absences were for valid reasons. In addition, oversleeping, locking one's keys in the house, alarms not going off, and snowmobiles falling off trailers are not valid reasons for tardiness. Overall, the employe's production and attendance failures were sufficiently numerous and without valid reason as to constitute an intentional and substantial disregard by the employe of production and attendance standards the employer reasonably could expect of its employes.

The commission therefore finds that, in week 39 of 1995, the employe was discharged for misconduct connected with his employment, within the meaning of sec. 108.04 (5), Stats. The commission also finds that the employe was paid, in week 40 and 41 of 1995 and in week 51 of 1995 through 4 of 1996, benefits totaling $1,039.00, for which he was ineligible and to which he was not entitled, within the meaning of sec. 108.03 (1), Stats. Pursuant to sec. 108.22 (8)(c), Stats., he must repay such sum to the Unemployment Reserve Fund. The commission also finds, finally, that waiver of benefit recovery is not required pursuant to sec. 108.22 (8)(c), Stats. Although the overpayment was not due to employe fault, it also was not the result of departmental error. See secs. 108.04 (13)(f) and 108.22 (8)(c)2, Stats.

DECISION

The appeal tribunal decision is reversed. Accordingly, the employe is ineligible for benefits beginning in week 39 of 1995, and until seven weeks have elapsed since the end of the week of discharge and he has earned wages in covered employment performed after the week of discharge equaling at least 14 times his weekly benefit rate which would have been paid had the discharge not occurred. The employe must repay $1,039.00 to the Unemployment Reserve Fund.

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 employe 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 :  February 16, 1996
veselle.urr : 105 : 6 MC 664  MC 688

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ David B. Falstad, Commissioner

NOTE :  The commission conferred with the administrative law judge before determining to reverse the appeal tribunal decision. The administrative law judge had the sense that the employer discharged the employe because of a letter the employe's attorney had written to the employer, inquiring about the basis of the employe's wage, and that the employe's production errors were not a significant factor in the employer's decision to discharge the employe. The commission has to disagree with this assessment, however, based upon the written warnings the employe received for the production errors he committed. The reports were contemporaneous with the production failures in question, and generally included the adverse effect of the employe's failures upon the employer's production process. Given these factors, the commission must conclude that the discharge was for the reasons the employer said it was.

cc :  ATTORNEY STUART R ROTTIER
CROOKS LOW & CONNELL SC

ATTORNEY DAVID J ECKERT
PATTERSON RICHARDS HESSERT WENDORFF & ELLISON


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