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

SILKE WANOVICH, Employee

HAL'S HARLEY-DAVIDSON & BUELL INC., Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02610170MW


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 the employer, a company selling Harley-Davidson motorcycles and parts, as a Service Department Backup Person. Her last day of work for the employer was October 23, 2002 (week 43), when she was discharged.

The employee had been hired under a fixed-term contract of employment providing that she would be employed for six months. Her term of employment under this contract was to have ended on October 29, 2002. On October 16, 2002, the employee went to Michael Lichner, the Director of Services / Service Manager, and asked him about the continuation of her employment. Lichner told her that he was still not sure and he did not give her a definite answer. In fact, by at least mid-September 2002, the employer had decided that it would allow the employee's contract to expire and that it would not offer her further employment. However, the employee had not been told this. On October 17, 2002, the employee met with an official of the employer, Curt Tople (ph), who told her that she would not be offered further employment after her contract expired. The employee also learned on this day, from Gary Schroeder, the employer's General Manager, of the fact that this had been decided over a month previously. The employee was also told on this day by Troy Martingilio, the Lead Service Writer for the employer, that had the employee not otherwise learned of it, the employer would probably have not told the employee of the decision not to offer her further employment until she came into work on October 29, when her contract expired. Prior to this time, the employee had not been told that her job was in jeopardy. Her immediate supervisor, Jean Tomasino, had told her that if she didn't hear anything about her contract she would most likely be kept on.

The employee was supposed to record her hours of work by punching in and out on her computer. In addition to punching in when she started work in the morning and punching out when she left at the end of the day, the employee was to punch out when she went on her lunch break and punch in when she began working again after finishing that break.

The employee's computer had internet access. Part of her job duties required her to go on the internet while working. However, she also sometimes went on the internet for personal reasons during her break times. In addition, the employee sometimes took her lunch break, or part of her lunch break, at her desk.

After learning on October 17 that she would not be offered further employment after her contract expired on October 29, the employee began going onto the internet on her computer at work to look for and to apply for employment.

On October 18, Martingilio observed the employee on the internet on her computer looking for and applying for employment. He told that she should not do that on work time but that she could do it on her lunch break time. After that the employee attempted to engage in that activity only when she was punched out on break time. On October 22, the employee had problems with her computer. It was determined that the hard drive temporary memory space was full due in part to a large number of temporary files and "cookies" attributable to internet browsing. On October 23, the employee forgot to punch out when she went out to get some lunch. This was observed by Lichner, who then discharged her. The issue for decision is whether the employee was discharged for misconduct connected with her employment within the meaning of Wis. Stat. § 108.04(5).

In order to resolve a discharge for misconduct case, it is necessary to address and answer several questions.

First, it is necessary to determine what the employer's actual reasons were for the decision to discharge the employee. The Wisconsin Supreme Court long ago recognized that the analysis of whether an employee was discharged for misconduct should focus on "the motivating reason for the discharge". Boynton Cab Co. v. Giese, 237 Wis. 237, 242-43, 296 N.W. 2d 630 (1941). Therefore, the commission has held, "the conduct of an employe alleged by an employer to constitute disqualifying misconduct must actually be the employer's reason for the discharge." Childs v. Madison Psychiatric Assoc. (LIRC, May 16, 1990); see also, Hayes v. Bell Resource Inc. (LIRC, December 18, 2002) ("The alleged misconduct must be the reason for the discharge"), and Hintze v. Career Staffing Services (LIRC, August 21, 2000) ("[section] 108.04(5) requires, for a disqualification for misconduct, that an employe's work be terminated by the employer, for misconduct connected with the employe's work. As a matter of definition, therefore, the allegations must be a reason why the employe was discharged"). The burden of proof on this point is on the employer: "[s]ince the employer bears the burden of establishing disqualifying misconduct, . . . it follows that the employer bears the burden of proving what its reasons were for terminating the employe". Childs, supra.

Second, it is necessary to determine if the employee actually engaged in the conduct that the employer decided to fire her for. Here too, the burden of proof is on the employer. Boynton Cab Co. v. Giese et al., 237 Wis. at 244-45. Thus, the commission has held, "[e]mployers have the burden of proof in misconduct cases . . . the evidence at the hearing must establish the employer's allegation of misconduct in order for the employer to prevail". Lambert v. Bridgestone / Firestone Inc. (LIRC, May 20, 1992), citing, Consolidated Const. Co., Inc. v. Casey, 71 Wis. 2d 811, 820 (1976).

Third, it is necessary to determine what the intent of the employee was in engaging in the conduct at issue. In misconduct cases, the "crucial question" is the employee's intent or attitude which attended her act which is alleged to be misconduct. Janzen v. Roehl Transport, Inc. (LIRC, January 31, 2003), citing, Cheese v. Industrial Comm., 21 Wis. 2d 8, 14, 123 N.W.2d 553 (1963).

Fourth and finally, it is necessary to draw the legal conclusion, of whether engaging in that conduct, with the intent found, constitutes "misconduct" within the meaning of Wis. Stat. § 108.04(5).

With respect to the question of what the employer's reasons were for discharging the employee, the most persuasive evidence is the testimony of Michael Lichner, who asserted that he was the person who made the decision to discharge the employee. Lichner stated that when he informed the employee of her discharge, he told her it was because of misuse of company time and failure to punch out properly for her lunch breaks. Lichner also stated that in deciding to fire the employee, he considered a report which had been given to him indicating that there had been a lot of non-work-related internet browsing taking place on the employee's computer. However, he did not claim, and there is no persuasive evidence, that the employer had a rule or policy against employees going on the internet for personal reasons when they were on break time. The commission credits the testimony of the employee, that Martingilio told her that she could use her computer to go on the internet when she was on break time, and her testimony that other employees went on the internet on break time, and her testimony that she and others (including her supervisors) sometimes ate lunch at their work stations. The commission finds that Lichner's concern was with the employee's use of her time when she was punched in and was expected to be performing the employer's work, and that he decided to discharge the employee because he believed she was engaging in personal activities, specifically "surfing" the internet, and getting and eating her lunch, when she was on work time.

The evidence offered by the employer included a document entitled "Events leading to termination of contract", which describes a number of incidents supposedly occurring on October 17 through 23, 2002. This document was described by Troy Martingilio as having been prepared by him based on observations made by him and by his assistant. To the extent that it reflects observations made by the assistant, who did not testify, it incorporates hearsay, which the commission is unwilling to rely upon. However, Martingilio did not indicate which of the incidents described therein were based on his observations and which were based on what his assistant told him she had observed, and therefore it is not possible to be sure that any observation described in the document is not the assistant's hearsay. In addition, the commission is dubious about the document because, while Martingilio testified that he created it as a computer file and then added entries more or less contemporaneously with each occurrence and finally printed it out, the document bears the title, "Events leading to termination of contract", at the top. Clearly, Martingilio could not have known when he first created the document, that it was going to contain descriptions of events in the days that followed that would lead to the employee's termination. Therefore, his description of how the document came to be created is called into question. Finally, Martingilio did not testify that he played any part in making the actual decision to discharge the employee or in notifying her of her discharge. For these reasons, the commission does not find this document or Martingilio's testimony to have substantial weight as an indication of the reasons why the employer made the decision to discharge the employee.

The next question which must be addressed is whether the employer established that the employee in fact engaged in the conduct which Lichner testified was his reason for discharging her.

The commission finds that the employee did, on some occasions including the last weeks of her employment, engage in "surfing" on and otherwise using the internet, and going and getting lunch and eating it, while she was actually punched in. The employee acknowledged engaging in a certain amount of this activity. However, the employer did not persuasively establish how much time the employe was spending in such activities, and this is highly significant because of the unusual time accounting practices followed by the employer. The employer followed a practice by which the employee was "docked" for one full hour of time each day, apparently to correspond to the one hour unpaid lunch break she was entitled to take, no matter how many minutes the employee actually punched out for. It
appears that the employee generally punched out for only about 10 to 15 minutes at lunch. For example, in the week of October 13-19, 2002 the employee was punched out over her lunch break for a total of only 1 hour 4 minutes. (1)   Thus, there would have been a considerable amount of time during which the employee would have been on lunch break as far as the employer's time accounting system operated in practice, even though she might not have been punched out. Even accepting that the employee was engaging in some personal activities such as going on the internet or getting and eating lunch during times on these days when she was not punched out, it is not clearly established by the record that she was necessarily doing so for more than the one hour per day for which the employer was treating her as "off the clock" for pay purposes.

Turning next to the question of what the intent of the employee was in engaging in personal use of the internet and getting and eating lunch during time when she was actually punched in, the commission finds that the employee's conduct was on some occasions a result of mistakes and forgetfulness on her part, and also reflected an understanding that her conduct was not objectionable due to the way the employer's unusual time accounting system operated.

The employee had been informed by Jean Tomasino, her supervisor, that regardless of how long she was punched out for in the middle of the day for her lunch break, her time would be adjusted to deduct a full hour each day from the time between her morning punch-in and her afternoon punch-out, to correspond to the 1 hour unpaid lunch break that she was entitled to take. The employee did punch out and punch in for her lunch breaks, but as Tomasino had indicated, a full hour was deducted from her time each day regardless of whether the employee had been punched out for a full hour for her lunch break.

While the employee did acknowledge that she was aware that she was still expected to punch in and out for her actual lunch break times, she explained that on the occasion which occurred on her last day of work she had forgotten to punch out when she went to get her lunch, and the commission finds this explanation credible. It is understandable that an employer's use of such a system could lead an employee to be less careful than they might otherwise be in punching out for lunch, since they would be aware that even if they neglected to punch out for the full amount of time they were engaged in personal activities during their lunch break, it would make no difference if the time they spent engaged in personal activities was less than an hour.

It is also relevant to the question of the employee's intent and attitude in engaging in the conduct in question, that she was not warned that such conduct was considered so unsatisfactory as to put her at risk of discharge. Particularly in view of the employer's unusual system of requiring employees to punch out for their lunch break but also docking them for one hour per day no matter whether they had punched out for a full hour or not, it was important for the employer to ensure that employees knew what its expectations were. However, the employee was given inconsistent signals by persons in the chain of command over her. Martingilio told her that she should not do job applications on work time but that she could search on the internet during her lunch break time. Tomasino told her not to worry because one hour was automatically deducted from her time each day. Lichner also conceded that the employee was not given warnings prior to the incident that resulted in her discharge.

The commission also takes into account, that the internet activity that prompted the decision to discharge the employee consisted in significant part of her efforts to find replacement employment after she found out, with only a few days left on her fixed-term contract, that the employer had decided more than a month previously to allow her contract to expire and not to offer her further employment and had also decided not to tell her this.

The question then becomes whether, by engaging in the conduct demonstrated with the intent found, the employee engaged in misconduct connected with her employment within the meaning of Wis. Stat. § 108.04(5). 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 commission does not believe that the employee's actions constituted "misconduct" under this standard. While the employee may have engaged in some personal internet use and some lunch break activity during times when she was not punched out, that occurred in some cases because she had forgotten to punch out before engaging in such activities. Such carelessness about punching in and punching out was not so egregious as to amount to misconduct, particularly considering the employer's time accounting system in which she was being docked for an entire hour in the course of each work day whether or not she punched out for an entire hour for lunch. To the extent that the employee may have engaged in such personal activities at time when she was aware that she was not punched out, the employer's time accounting system is also relevant, because the employee's awareness that she would be shown as punched out for an entire hour whether she was or not could reasonably have led her to feel that engaging in personal activities for up to an hour in the course of each day would not actually affect anything. Finally, the commission considers that the failure of the employer to advise the employee of the decision it had arrived at not to offer her continuing employment after the expiration of her contract, mitigates somewhat any arguable wrongfulness in the employee's conduct of engaging in a search for other employment during time when she may have been punched in.

The commission therefore finds that in week 43 of 2002, the employee was discharged but that the discharge was not for misconduct connected with the employee's work, within the meaning of Wis. Stat. § 108.04(5).

DECISION

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

Dated and mailed May 19, 2003
wanovsi . urr : 110 : MC 600  MC 655

/s/ David B. Falstad, Chairman

James A. Rutkowski, Commissioner

/s/ James T. Flynn, Commissioner

NOTE: The commission had no disagreement with the material findings of fact and conclusions of law of the administrative law judge. It has issued its own decision in order to be able to more fully explain its reasons for agreeing with the decision of the administrative law judge.


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Footnotes:

(1)( Back ) The operation of the employer's unusual time accounting system is illustrated by the fact that she was only paid for 46.82 hours of work that week, although she was punched in for a total of 50.76 hours. The difference is 3.94 hours, which is 3 hours 56 minutes. That, in turn, is the exact difference between 5 hours - for five one-hour lunch breaks - and the 1 hour 4 minutes that the employee actually "clocked out" for her lunch breaks.

 


uploaded 2003/07/14