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

DWAYNE J DZWONKOWSKI, Employee

MID-CITY FOUNDRY CO, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04608066MW


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 20 years for the employer, a foundry. He was discharged on June 7, 2004 (week 24).

The issue is whether the actions for which the employee was discharged constitute misconduct connected with his employment.

During the period of his employment relevant here, the employee functioned as the employer's cleaning and shipping supervisor. In this position, the employee was a member of management, and supervised around 20 employees on two shifts. The employee worked five 9-hour shifts each week, and was paid overtime for working more than 45 hours in a work week.

Management employees received ten days of paid sick leave each calendar year pursuant to the employer's attendance policy. This policy stated that an employee's health is her or her responsibility, and the employer expected employees to proactively address health or personal issues affecting their attendance. The employee understood that he was to provide notice to the employer of an absence before the start of his shift.

In October of 2001, the employer began implementing practices recommended by a management consultant. The employer conducted a series of training meetings to introduce its management and production employees to these new practices, and staff meetings every Tuesday to provide updates. As a part of this initiative, the employer required all employees to work their scheduled hours, and formalized performance and attendance expectations.

On July 23, 2002, the employee was counseled that his 16 days of absence due to illness in the previous 12 months was unsatisfactory, and he needed to proactively pursue treatment for his medical problems because they were interfering with his responsibilities to the employer.

Scott Heatwole, the employer's Senior Administrator, met with the employee on August 25, 2003, to discuss his attendance. Heatwole called the meeting because the employee had failed to call in an absence until late in the day, and had called in this absence to someone other than his immediate supervisor. During this meeting, the employee stated that he had a drinking problem which was causing him to feel ill and miss work; and that his recurring stomach problems were caused or exacerbated by his drinking. Heatwole told the employee twice during this meeting that he was required to provide notice directly to his supervisor if he was going to be absent. During their subsequent meeting on August 25, 2003, Heatwole presented the employee with FMLA application forms, advised him that his frequent absences were a performance issue, and reminded him that he was required to talk with his immediate supervisor if he was going to be absent.

The employee obtained a divorce in August of 2003, and assumed new child care responsibilities as a result. Because these responsibilities interfered with his ability to arrive at work by 6:00 a.m., his scheduled start time, on certain days of the week, the employer granted the employee's request that he start at 8:00 a.m. Monday, Tuesday, and Wednesday of each week, and 6:00 a.m. (1)   on Thursday and Friday beginning at the end of August or beginning of September of 2003.

The employee was aware that the employer expected him to work his scheduled hours.

Between September 1, 2003, and the date of the employee's discharge (June 7, 2004), the employee's attendance record shows that, on Mondays, Tuesdays, and Wednesdays, the employee clocked in to work 30 minutes or more before the start of his shift on approximately half his work days, and one hour or more before the start of his shift on approximately one-third of his work days. During this same period of time, on Thursdays, the employee was tardy approximately one-third of his work days, the majority of these by 30 minutes or more; and, on Fridays, was tardy more than half of his work days, the majority of these by 30 minutes or more.

The employee explained that he was frequently tardy on Thursdays and Fridays because he wasn't used to getting up so early.

On April 6, 2004, the employee was warned by Gary Baior, his immediate supervisor, that his record of absenteeism was unacceptable, as was his failure to consistently work his scheduled hours, and that his job was in jeopardy as a result. The employee was directed to submit a plan for improving these aspects of his performance. In the plan he submitted on April 14, 2004, the employee indicated his commitment to abide by the start times established in late August or early September of 2003.

On May 25, 2004, Baior met with the employee to discuss his absences on April 8, April 13, and May 21, and Baior indicated that the employee's rate of absenteeism was unacceptable and his job was in jeopardy as a result. The employee responded that he didn't care because he was looking for another job. The employee admits that, as of May 25, 2004, he was aware that, if his attendance did not improve, he would be subject to discipline up to and including discharge

In the last two months of his employment, the employee had Thursday/Friday tardies on April 16 for 24 minutes, April 22 for 24 minutes, May 6 for 18 minutes, and May 14 for 6 minutes. (2)   The employee also clocked in more than 30 minutes before the start of his shift on 6 days.

On June 4, 2004, the employee was scheduled to start work at 6:00 a.m., but did not provide notice to his superiors until around 10:30 a.m. that he was ill and did not intend to report to work that day. The employee's phone records indicate that he began making telephone calls before 5:00 a.m. that day, and made more than 20 telephone calls before 10:30 a.m. The employee explained to his supervisor that he had not called him earlier because he "had woken up late."

The employee reported to work on June 7, 2004, and presented the employer a medical excuse for his absence on June 4. The employer discharged the employee on June 7.  
 

Procedural issue

Hearing before a department administrative law judge was conducted on September 14 and October 2, 2004. In a decision dated November 3, 2004, the administrative law judge concluded that the employer had failed to prove misconduct and the employee was entitled to benefits as a result.

In its petition for commission review, the employer represents that, after the discharge, the employer learned that the employee had falsified his time cards by directing certain of his subordinates to punch him in before he arrived at work or to punch him out after he had left work. The employer requests that this matter be remanded to the department for additional hearing as the result of this newly discovered evidence.

However, even if this proferred evidence satisfied certain of the criteria necessary to establish that it was "newly discovered" (see, e.g., Walls v. Century Auto Sales LLC, UI Hearing No. 04402526AP (LIRC Dec. 22, 2004), citing Naden v. Johnson, 61 Wis.2d 384, 212 N.W.2d 585 (1973)), remand is not appropriate because it does not satisfy the criterion that it be relevant to the underlying issue.

As the commission stated in Marco v. Joseph Chris Personnel Services, Inc., UI Hearing No. 03005384MD (LIRC March 26, 2004), "the determination as to whether misconduct has been established is appropriately limited to an analysis of those acts known to the employer at the time of the discharge and which played a part in the decision to terminate the employment relationship." Here, the employer admits that it was unaware at the time of the discharge that the employee had directed his subordinates to falsify his time cards. As a result, evidence as to that conduct would not be relevant.

The employer argues that, even if not relevant to the resolution of the misconduct issue per se, such evidence would be relevant, under the after-acquired evidence principle enunciated in McKennon v. Nashville Banner Publishing Co., 513 U.S. 352, 115 S.Ct. 879 (1995), to the determination of the proper remedy here.

In McKennon, the U.S. Supreme Court, in an effort to balance the equitable interests of an employee and employer in an age discrimination dispute, and to recognize the public policy considerations underlying the Age Discrimination in Employment Act (ADEA), held that after-acquired evidence of wrongdoing which would have resulted in discharge if discovered during the course of the employment relationship, although not relevant to the issue of whether the employer was motivated by a discriminatory animus at the time of discharge, would operate to bar the accrual of back pay after the date the employer discovered the wrongdoing.

The McKennon court stated that, "[t]he proper boundaries of remedial relief in the general class of cases where, after termination, it is discovered that the employee has engaged in wrongdoing must be addressed by the judicial system in the ordinary course of further decisions, for the factual permutations and the equitable considerations they raise will vary from case to case." The employer here cites no authority for extending the principle enunciated in McKennon to unemployment insurance cases, and the commission has discovered none. Moreover, it is difficult to draw a parallel between the remedy in an unemployment insurance case, the award or denial of an insurance benefit, to the type of remedies under consideration in McKennon, i.e., reinstatement, front pay, and back pay.

As a result, the commission denies the respondent's motion for additional hearing in this matter.  
 

Misconduct issue

The employer indicated the employee was discharged for problems with the quality of his work as well as for his attendance deficiencies. However, other than stating general concerns about the employee's poor leadership, the only two quality problems described in the record relate to an inaccurate and untimely inventory conducted by the employee in May of 2004, and the continuing failure of one of the employee's subordinates to enter data into the employer's tracking system. The employer admits, however, that the May inventory was the first one the employee had completed independently, and that the employee was not the only supervisor responsible for the data entry failures. The employer failed to sustain its burden to prove misconduct in regard to the quality of the employee's work.

However, the employee's attendance record does support a conclusion of misconduct, particularly given the higher standard to which managers are held.

Apparently, earlier in his employment as a supervisor, the employee was permitted to determine his own work schedule as long as he worked 9 hours each day. However, beginning in October of 2001, the employer modified this policy, and required its supervisors to work a set schedule. The employee resisted conforming his conduct to this new requirement. In fact, even after the employer modified his start time in late August or early September of 2003 to accommodate the employee's child care commitments, and even after the employee was warned that his start time record was unsatisfactory, he continued to clock in more than 30 minutes earlier or later than his scheduled start time on almost half his work days. Despite repeated attendance warnings, and notice that his attendance record was jeopardizing his job, the employee was tardy without explanation four times in the last two months of his employment, and called in his absence more than four hours after the start of his shift on June 4 even though he was awake and making calls by 5:00 a.m. that day. Finally, the attitude displayed by the employee in his meeting with management on May 25, 2004, demonstrated that he was not serious about conforming his conduct to the employer's expectations.

The commission does not agree with the employer, however, that the employee's record of absences also lends support to a conclusion of misconduct, since this record shows that the employee attributed these absences to illness, a valid reason, and the employer did not successfully rebut this showing. However, the continuing refusal of the employee, a member of management, to work his scheduled hours, even after repeated warnings; his failure to provide valid reasons for his frequent tardiness; the uncooperative attitude the employee displayed when issued the May 25 warning; and the fact that, without valid reason, the employee provided notice of his June 4 absence more than 4 hours after the start of his shift that day, after receiving a warning less than two weeks earlier that his attendance record was placing his job in jeopardy and repeated direction that he was required to report his absences prior to his shift to his immediate supervisor, were an intentional and substantial disregard of the employer's interests, within the meaning of Boynton Cab Co. v. Neubeck & Ind. Comm., 237 Wis. 249, 296 N.W. 636 (1941), and support a conclusion of misconduct here.

The commission therefore concludes that the employee was discharged in week 24 of 2004 for misconduct connected with his employment, within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employee was paid benefits totaling $5,922, $3,290 of which is to repaid as a result of this decision, for which he was not eligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03(1), and that the employee is required, pursuant to Wis. Stat. § 108.22(8)(a), to repay this amount to the Unemployment Reserve Fund.

The commission further finds that waiver of benefit recovery is not required under Wis. Stat. § 108.22(8)(c), because, although the overpayment did not result from the fault of the employee, within the meaning of Wis. Stat. § 108.04(13)(f), the overpayment was not the result of department error. See Wis. Stat. § 108.22(8)(c).

DECISION

The employer's motion for additional hearing in this matter is denied. The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 24 of 2004, and until seven weeks have elapsed since the end of the week of discharge and the employee has earned wages in covered employment performed after the week of discharge equaling at least 14 times the employee's weekly benefit rate which would have been paid had the discharge not occurred. The employee is required to repay, as a result of this decision, the sum of $3,290 to the Unemployment Reserve Fund.

The benefits checks for weeks 45 of 2004 through 8 of 2005 were forfeited. Since benefits are now denied for such weeks, they cannot be applied to the forfeiture. The amount restored to the forfeiture balance is $5,264.

The initial Benefit Computation (Form UCB-700), issued on July 26, 2004, is set aside. If benefit payments become payable based on other employment, a new computation will be issued as to those benefit rights.

Dated and mailed April 20, 2005
dzwondw . urr : 115 : 1  PC 740 MC 665.08

/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 conclusion as to what the hearing record in fact established and upon a differing interpretation of the relevant law.

 

cc:
Attorney Lauri D. Morris
Attorney John D. Uelmen



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Footnotes:

(1)( Back ) The employee testified that his scheduled start time on Thursdays and Fridays was 5:30 a.m.

(2)( Back ) If, as the employee testified, the start time to which he agreed on Thursdays and Fridays was 5:30 a.m., then the employee was tardy 11 times in his last two months of employment.

 


uploaded 2005/04/25