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

WILLIAM J WIDLAKE, Employee

CROWN CORK & SEAL USA INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04402674OS


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 more than 14 years as an electrician for the employer, a packaging business. He was suspended effective May 28, 2004, and discharged effective June 4, 2004 (week 23).

The issues are whether benefits should be denied during the period of the employee's suspension; and whether the actions for which the employee was discharged constitute misconduct connected with his employment.

During 2004, the employee had received warnings/disciplinary suspensions for engaging in an unsafe practice, for attendance, for refusing mandatory overtime, and for engaging in personal business on work time.

The employee was aware that his job was in jeopardy as a result of these warnings/ discipline.

On Saturday, May 15, 2004, the employee received notice that he would be scheduled to work five 12-hour shifts the following week on a large project which was facing a deadline. On Monday, May 17, he told management that he had other responsibilities that week relating to assisting his elderly parents in their move to a new residence, and working 60 hours would, as a result, be a hardship, but that he would try to work with the employer. On Tuesday, May 18, when he was asked whether he could work Saturday, May 22, he told management he could not.

On Friday, May 21, after working 8 of his 12 scheduled hours, the employee told the other electrician he was leaving and did not complete his shift. The employee did not request permission from, or provide notice to, his supervisors, or consult with a union representative, before leaving.

The employee was on vacation the following week, i.e., May 24-28.

The employer issued a "suspension pending termination" on May 28, and a letter of termination on June 4 after meeting with the employee on June 2.

The employer's work rules (exhibit #3) prohibit leaving an assigned work area or the company premises without supervisory permission.

The first issue is whether benefits should be denied during the period of the employee's suspension.

Wisconsin Statues § 108.04(6), states as follows:

108.04(6) Disciplinary suspension. An employee whose work is suspended by an employing unit for good cause connected with the employee's work is ineligible to receive benefits until 3 weeks have elapsed since the end of the week in which the suspension occurs or until the suspension is terminated, whichever occurs first. This subsection does not preclude an employee from establishing a benefit year during a period in which the employee is ineligible to receive benefits under this subsection if the employee qualifies to establish a benefit year under s. 108.06(2)(a).

The commission has held, however, that certain suspensions do not fall within the purview of Wis. Stat. § 108.04(6). See, Messenger v. Fort James Operating Company, UI Hearing No. 99400520GB (LIRC Aug. 13, 1999) (proactive suspension, i.e., to protect employer from potential harm by employee, not disciplinary suspension within meaning of Wis. Stat. § 108.04(6)); Brown v. Jewel Food Store, UI Hearing No. 98605057MW (LIRC Oct. 20, 1998) (suspensions for investigation are not disciplinary suspensions within meaning of Wis. Stat. § 108.04(6)). An employee is entitled to benefits during the periods of such non-disciplinary suspensions.

Here, the collective bargaining agreement provides for the "suspension pending termination" imposed on the employee here. The commission concludes that this suspension is clearly more in the nature of a proactive or investigative one than a disciplinary one, and the employee, as a result, should be eligible for benefits during his period of suspension.

The commission also concludes that, although it was an error in judgment, the employee's decision to leave work without notice to management, was not misconduct, even considering his overall work record. The employee, who had told the employer that it was a hardship for him to work 60 hours that week in view of the assistance he was providing his elderly parents, had already worked 56 hours in five days by the time he left on Friday. The employee notified his co-worker that he was leaving, and there was no showing that his leaving presented any kind of safety or quality issue. The employee had worked for the employer for many years, and it was not established that he had ever left the work site without permission or notice prior to this occasion. See, e.g., Wagner v. Superior of Wisconsin, Inc., UI Hearing No. 01200774EC (LIRC Aug. 29, 2001) (misconduct where employee of two months left machine running when left work in middle of shift without permission or notice despite prior warning). Finally, it should be noted that the most recent action taken by the employer in regard to the employee's attendance was a written warning, and, given the employer's progressive discipline practice, it would have been reasonable for the employee to conclude that his next attendance deficiency would result in a suspension, not termination, i.e., the employee was not on notice that his job would be in jeopardy for this four-hour absence without notice attendance violation.

The commission concludes that the employer's suspension of the employee in week 23 of 2004 was not for good cause connected with the employee's work, within the meaning of Wis. Stat. § 108.04(6).

The commission further concludes that, in week 23 of 2004, the employee did not voluntarily terminate work with the employer within the meaning of Wis. Stat. § 108.04(7)(a); but was discharged, within the meaning of Wis. Stat. § 108.04(5), and this discharge was not for misconduct connected with the employee's work.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 23 of 2004, if otherwise qualified.

Dated and mailed November 30, 2004
widlawi . urr : 115 : 1    MC 676

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


NOTE: The commission did not confer with the administrative law judge before reversing his decision, because its reversal was not based upon a differing view as to the credibility of witnesses, but instead upon a differing interpretation of the relevant law.

 

cc: Crown Cork & Seal USA, Inc. (Oshkosh, Wisconsin)


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uploaded 2004/12/06