PAUL A HEFTI, Employee

WAL-MART ASSOCIATES INC, Employer

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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own, except that it makes the following modifications:

The first full paragraph on page 3 of the decision is deleted, and the following substituted:

The employer failed to show that the employee engaged in an act of misconduct between his last warning on October 5 and his discharge on October 16. In the absence of proof of such an intervening act, misconduct has not been established here.

The decision of the administrative law judge, as modified, is affirmed. Accordingly, the employee is eligible for benefits, if otherwise qualified.

Dated and mailed May 19, 2003
heftipa . umd : 115 : 1  MC 665.04  MC 699.05 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ James T. Flynn, Commissioner

The employee was issued a written coaching on August 15, 2002, because the employer had received complaints that the employee smelled of alcohol while waiting on customers on August 13, and because he had failed to provide the employer notice of his absence on August 15. This warning indicated that the next level of corrective action would be a decision-making day.

The employee served a "decision-making day" on August 31, 2002, because he had failed to provide the employer notice of his absence on August 30, because he hadn't been spending sufficient time in the deli department, and because he was calling co-workers during his off-duty hours and interfering with their work responsibilities. The warning accompanying this action indicated that the next level of corrective action would be termination.

The employee was issued a verbal coaching on October 5, 2002, because he had not set up a large display by the assigned deadline and because he had used employer staff rather than vendor staff to perform the work. This warning indicated that the next level of corrective action would be a written coaching. The employer testified that, in discussing this action with the employee, he was told that this was his last chance.

The employee was discharged on October 16, 2002. The employer does not allege that the employee engaged in another act of misconduct between October 5 and October 16, i.e., the discharge was based on the employee's actions for which he had been warned/disciplined on August 15 and 31 and October 5.

The commission has consistently held that the employer has to show that the employee engaged in some other act of misconduct, after a written warning or other disciplinary action has been imposed, in order to prove that the employee was discharged for misconduct. Bebo v. Schindler Elevator Corp., UI Hearing No. 02609535MW (LIRC April 11, 2003); Rash v. Maynard Steel Casing Co., UI Hearing No. 00606695MW (LIRC Dec. 5, 2000); Pierce v. The Kelch Corp., UI Hearing No. 00602402MW (LIRC May 31, 2000)

Here, the employee was issued a decision-making day for attendance and time utilization reasons on August 31, and a verbal counseling for performance reasons on October 5. The record does not show that the employee engaged in any additional acts in any of these areas after October 5 and, in fact, it does not appear that the employer is even alleging that he did. In the absence of proof of such an intervening act, it would have to be concluded that the employer failed to show that the employee was discharged for misconduct.

cc: Wal-Mart Associates, Inc. (Tomah, Wisconsin)

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uploaded 2003/05/30