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

GREGORIO F VARGAS, Employee

MILPRINT INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02006554DV


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 nearly two years as a production worker for the employer, a packaging manufacturer. For a portion of that time, he was a part-time employee. He later became a full-time employee and became eligible for paid vacation. His last day of work for the employer was on or about August 7, 2002 (week 22), and he was discharged shortly thereafter.

The initial issue to be resolved 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."

During the early months of calendar year 2002, the employee was reprimanded on several occasions due to attendance problems, although his absences were primarily due to illness.

In July of 2002, after becoming eligible for two weeks (actually, seven work days) of vacation, the employee went to the employer's personnel staff for assistance in making out a vacation request. The initial request was for two weeks of vacation in September of 2002. That request was denied. After the employee's September vacation request was denied, he asked for vacation on five or six consecutive weekends, beginning with the first weekend of August. He explained that he wanted to go to a commercial truck driving school to complete his certification for a commercial driving license. That request was denied, based on the employer's policy that vacation must be taken in weekly blocks of time, and cannot be broken into single days or weekends.

Despite the fact that the employee's weekend vacation request was denied, he took off work on August 2 and 3 to attend truck driving school. The next week, he was reprimanded for his actions and told that any further infractions in the next three months could mean discharge. The employee then missed work on August 9, 10, and 11 in order to attend truck driving school. His absences were without the requisite daily notice to the employer and were without authorization, although he had told the employer in advance that he still intended to attend the training. Following those absences he was discharged.

The commission finds that the employee's conduct, while unsatisfactory to the employer, did not demonstrate an intentional and substantial disregard of the employer's interests. First, the employer presented no explanation for denying the employee's request to use take his vacation in September. The employee gave the employer notice well in advance of the time he wished off that he desired to use the vacation to which he was entitled. Although the employer has a policy that workers in the same job classification cannot be off at the same time, the commission cannot speculate that such was the reason for denying the employee's request. Further, the employer does not explain why it is unacceptable for one worker in the same job classification to be off when another worker with the same classification is off, how this adversely affects the employer's operations, how many workers are in the employee's job classification, and where the employee ranks as far as seniority within his job classification. The commission believes that the employee's request to take parts of his workweek off, as an alternative to taking a week off, was a reasonable request. Again, the employer does not adequately explain why this would have been so disruptive to its operations given the fact that the employee's work schedule was set for the entire year, and the employee provided the employer with notice of a need to be absent during parts of the week. The commission is willing to assume that absences, to some extent, are disruptive to the employer's operations. However, the employee is still entitled to his vacation under the employer's policy.

The commission therefore finds that in week 32 of 2002, the employee was discharged but not for misconduct connected with his work for the employer within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 32 of 2002, if he is otherwise qualified.

Dated and mailed April 23, 2003
vargagr . urr : 132 : 1  MC 605.07  MC 605.09 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ James T. Flynn, Commissioner


MEMORANDUM OPINION

The commission did consult with the ALJ regarding her impressions of witness credibility and demeanor. The ALJ indicated that she did not have any adverse credibility or demeanor impressions of the employee that led her to doubt any of the testimony that he offered at the hearing. The commission disagrees with the ALJ's conclusion that the employee's conduct rose to the level of an intentional and substantial disregard of the employer's interests.

cc: 
Attorney William Haus
Audra D. Mead
Milprint, Inc. (Lancaster, Wisconsin)


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