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

SONDA W LEWIS, Employee

JEWEL FOOD STORE, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04608532MW


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 over two years as scan coordinator for the employer, a retail grocery and drugstore business. Her last day of work was August 2, 2004 (week 32).

While the employee was working on the morning of July 29, 2004 (week 30), a coworker telephoned, explaining that she, the coworker, had just left work due to an emergency with her child and forgot to clock out of the employer's time reporting system. The coworker asked the employee to clock her out. The employee testified that the coworker said she would talk to the employer's management about the situation later. The employee clocked the coworker out. The employer's rules provide that a worker attempting to clock another worker in or out will be subject to discipline up to and including termination.

The employee was discharged on August 20, 2004 (week 34) for clocking the co-worker out on the morning of July 29, 2004 (week 30). Following the discharge, the employee filed a claim for unemployment insurance benefits.

Wis. Stat. § 108.04(5) provides that a worker who is discharged for misconduct connected with his or her employment is ineligible to receive unemployment insurance benefits until seven weeks have elapsed from the week of the discharge and the employee has earned 14 times his or her weekly benefit rate in subsequent covered wages. Thus, the issue to be decided is whether the employee's discharge was for misconduct.

The employer contended that the employee's actions constituted misconduct connected with the employment. 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."

While the commission certainly understands the employer's interest in maintaining the integrity of its timekeeping system, the commission does not find that the employee's behavior in this isolated incident evinced such a willful or intentional disregard of the employer's interests so as to constitute misconduct. In particular, this incident was created by the coworker's emergency situation. The employee did not benefit by her action and reasonably did not think her coworker would either, given her testimony that the coworker would notify management about the matter. No evidence was presented to indicate that the employee had ever engaged in such behavior previously and she had no prior disciplinary violations. As such, this was an isolated incident of poor judgement, which warranted some discipline, but did not rise to the level of misconduct as that phrase has been defined above.

The commission therefore finds that in week 34 of 2004, the employee was discharged but not for misconduct connected with her employment, within the meaning of Wis. Stat. § 108.04(5).


DECISION

The appeal tribunal decision is reversed. Accordingly, the employee's eligible for unemployment insurance benefits beginning in week 34 of 2004, if otherwise qualified.

Dated and mailed December 29, 2004
lewisso . urr : 150 : 8  MC 675 MC 697

/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 as the reversal was not based upon a differing view as to credibility of the witnesses. Instead, the reversal is based upon a different legal conclusion as to whether the employee's conduct constitutes misconduct.


cc:
Jewel/Osco
Continental Consultants


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