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

DAVID G HANDEL, Employee

FEDERAL EXPRESS CORPORATION, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05605972MW


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 five years, apparently without incident, as a courier for the employer, an express freight transportation business. He was discharged on July 13, 2005 (week 29).

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

The employer requires its couriers to account for each minute of work time by recording on a computer the starting and ending time for each coded category of activity in which they engage. Couriers are required to take at least 30 minutes of unpaid break time each day they work more than six hours. This time can be split into increments of as little as five minutes, but may not be taken in the first or last hours of the work day. Once a courier enters an ending time for a coded activity, the computer will not permit him to change it. Such changes can, however, be effected by a customer service assistant or by a supervisor at an employee's request.

On July 6, 2005, the employee entered the starting and ending time of a 30-minute break at the beginning of the break. His break was interrupted after 15 minutes and he was directed to return to work. The employee did not contact a customer service representative or supervisor to change the times recorded for his break.

Near the end of the work day, the employee left the work site for about 10 minutes to put gas in his car. The employee did not record this time as break time, reasoning that he was simply taking the time that was due him when his break was interrupted earlier in the day.

When the employee's supervisor returned from vacation around July 10 or 11, he received a report that the employee had left the work premises on July 6 without recording his absence as break time. The supervisor asked the employee about it, and the employee admitted that he had left to put gas in his car. The employee did not explain to his supervisor until a few days later that, rather than requesting a change in the coding of the interrupted break time, he simply took an uncoded break later in the day.

The employee was discharged for falsifying his time card.

The facts here are similar to those in Ostrowski v. Royalton Manor, UI Hearing No. 012012013EC (LIRC Dec. 21, 2001) and Cornils v. Ultra Mart Foods, Inc., UI Hearing No. 02402775AP (LIRC Feb. 27, 2003), where two long-term, otherwise satisfactory employees, reasonably believing that they were taking time off owed to them by the employer because they had worked longer hours the week before and did not record them in order to save the employer the cost of overtime (Cornils), or because they had come in to work early but not punched in to ensure that a delivery could be made (Ostrowski), took time off without recording it as break/leave time. The commission did not find misconduct in these cases.

The employee did not follow the employer's practices regarding the recording of his work time/activities on July 6, i.e., he should have provided notice to a customer services assistant or supervisor as to the shortened break rather than simply taking an equivalent break later in the work day without recording it as such. However, this was an isolated error in judgment, not misconduct.

The commission concludes that, in week 29 of 2005, 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 29 of 2005, if otherwise qualified.

Dated and mailed November 15, 2005
handeda . urr : 115 : 1  MC 630.09

/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 her 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:
Federal Express Corporation (Milwaukee, Wisconsin)
Chippewa Metal Parts, Inc.


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