VICTORIA L BEZIK, Employee

STOUGHTON TRAILERS LLC, 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 makes the following:

The employee worked about five years and two months, as a forklift truck driver, for the employer, a manufacturer of semi trailers. Her last day of work was October 5, 2004 (week 41), when she was discharged.

The issue to be decided is whether the employee's actions, which led to the discharge by the employer, constitute misconduct connected with the employment.

The employer has work rules of which the employee was aware. The rules list categories of violations with a specific base-point value of 4, 6, 13, 17 or 18, as well as points "to be determined by circumstance" and violations warranting immediate termination for one occurrence. The employer may determine that an incident violated more than one work rule, in which case the employer rates the incident based on the violation with the highest base points. The rule provides for adjustment of the base points from plus one to minus one point for each of the following factors: a) prior disciplinary history, b) intent (deliberate and/or malicious act), and c) degree of violation and exposure to harm. The policy provides for termination upon accumulation of 18 or more points. The points accumulate even if the violations are for unrelated offenses. Thus, termination could occur even if the worker corrected each separate behavior after warning.

On April 14, 2004, the employee failed to punch off the clock for lunch. The employer determined that two work rules were violated, 1) falsifying a time record and 2) wasting time. Falsifying a time record has 13 base points under the employer's rule, while wasting time has four. An additional point was added for intent based on the employer's correct assessment that the employee intentionally failed to punch off the clock to take a longer-than-authorized lunch break. Another additional point was added based on the employer's assessment that the employee's behavior created "significant exposure to harm" because the employer wants to know the whereabouts of each worker if an emergency arises. The employer assessed 15 points for this incident.

On September 16, 2004, the employee and another worker were driving forklift trucks to transfer a load of aluminum rails into a storage area. Each rail was 53 feet long, about 1/4 inch thick and three inches wide. The rails were seated on a rack. The two forklift trucks were positioned at opposite ends of the length of the rack. The employee's truck was the first entering the building. She drove in reverse while the other truck drove forward. They were expected to place the rails on the floor in a congested area. The maneuver was difficult. An assembler who cuts rails observed the operation and saw that one wheel of the employee's truck backed over another rail already on the floor. The assembler shared this information with a supervisor including the assembler's observation that it appeared the employee was unaware that she had driven over the rail. Management confronted the employee abut the damaged rail. She denied responsibility because she was unaware that a wheel of the truck had run over the rail.

The employer determined that the incident of September 16, 2004, violated two work rules, 1) not telling the truth about an employment matter and 2) negligent or intentional careless workmanship. The first rule violation warrants immediate termination under the employer's rules, while the second warrants assessment of six base points. The employer added an additional point based on the finding that her actions were deliberate and malicious.

On September 20, 2004, the employee scratched her finger at work about 15 minutes before the end of her shift. The scratch bled slightly so she wanted to cover it with a Band-Aid. She went to her supervisor's office where Band-Aids are kept and workers sign a sheet indicating that they took one. There were no Band-Aids in the supervisor's office. The employee used one from her pocket. The morning of September 21, the employee checked her supervisor's office for a Band-Aid but there still were none there. She went to the guard shack but there were no Band-Aids in the guard's first aid kit. She then went to the employer's nurse and obtained a Band-Aid. The nurse asked if the employee reported the incident and the employee truthfully replied that she did not think scratches needed to be reported. The scratch was not similar to the accident the employee had a few months earlier when she timely reported a deep cut to her finger and later that blood poisoning developed. It is common that workers do not report minor scratches as work accidents.

The employer concluded that the employee's actions on September 20 violated the work rule that required immediate notification of a "work related injury" to a supervisor on the day the injury occurred, a violation with four base points. No additional points were assessed for intent. One additional point was assessed for "well beyond acceptable behavior with significant exposure to harm."

The term "work related injury" is undefined in the employer's rules. It was reasonable for the employee to consider the minor scratch to her finger on September 20, as insignificant and not subject to the employer's reporting requirements. The employee previously reported the deep cut to her finger. There is no reason to believe that she would have failed to report the September 20 scratch to her finger, if she thought it was a reportable event.

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 employer did not establish, except for the April 14 incident, that the employee engaged in intentional conduct in disregard of the employer's interests. The employee was disciplined for running over a rail that she did not intentionally run over and that she did not know she had run over. The employee at most exercised poor judgment in not immediately notifying the employer that she had scratched her finger. The employee's overall conduct, for which she was discharged, did not evince willful or wanton disregard of the employer's interests.

The employer is free to implement and enforce it own disciplinary policy and make a determination as to whether certain conduct constitutes a violation of one or more of its rules. However, the mere violation of work rules resulting in discharge does not establish that the discharge was for statutory misconduct. As the Wisconsin Supreme Court noted in Milwaukee Transformer Co. v. Industrial Comm., 22 Wis. 2d 502 (1964 ):

In considering whether a breach of company work rules or collective-agreement provisions is misconduct, the "reasonableness" of the company rule must be assessed in light of the purpose of unemployment compensation rather than solely in terms of efficient industrial relations. We are less concerned with the "reasonableness" of the rule from the point of view of labor-management relations, than with the "unreasonableness" of the conduct of the employee in breach of the rule. The unemployment compensation statute is not a "little" labor relations law. The critical question is whether [the employee's] conduct was an intentional and unreasonable interference with [the] employer's interest, regardless of what construction was put on the rules or the reasonableness of those rules.

Milwaukee Transformer at 512 [footnotes omitted].

The commission therefore finds that in week 41 of 2004, the employee was discharged but the discharge was not for misconduct connected with the employee's work, within the meaning of Wis. Stat. § 108.04(5).

The decision of the administrative law judge is modified to conform to the above findings and, as modified, is affirmed. Accordingly, the employee is eligible for benefits beginning in week 41 of 2004, if otherwise qualified.

Dated and mailed March 4, 2005
bezikvi . urr : 132 : 1  MC 688.1

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

cc: Stoughton Trailers, LLC (Brodhead, Wisconsin)

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