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

WESLEY C WILLIAMS, Employee

TWIN CITY SECURITY INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05608922MW


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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employee is ineligible for benefits beginning in week 47 of 2005, 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.

Dated and mailed March 8, 2006
williwe . usd : 115 : 1 MC 658   MC 640.05

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION


In his petition, the employee expressed a concern that the administrative law judge (ALJ) "talked so fast using so many big words I had a very hard time trying to keep up and understanding what a lot of those words meant," and the ALJ wouldn't let him "explain in detail for most part."

Based on its review of the hearing record, the commission concludes that, although the ALJ did keep the hearing moving at a steady pace, neither the speed of his delivery nor his choice of words was unusual or inappropriate. The ALJ chose words which were reasonably understandable, and he gave the parties ample opportunity to ask questions and provide answers.

Turning to the merits, the evidence of record shows that employee was discharged for two incidents which occurred on November 7, 2005.

The employee worked as a mall security guard for the employer, a contract security company. The employee admits that he clocked in at 3:45 pm for his
4-10 pm shift, and left almost immediately without notice to the employer to eat at a McDonald's restaurant 15 blocks away from the mall, returning to his patrol area around 4:30 pm. The employer testified that the employee had been told that, even though he was supposed to be in his patrol area during his entire
6-hour shift, he was permitted to get food at the restaurants located in the mall or in the immediate vicinity of the mall. The employee acknowledges that he was aware that he was expected to be in his patrol area during his entire 4-10 pm shift and to be available to respond to security emergencies, and had discussed with the employer where he could "go to get food" during his shift. The employee testified, however, that he had never been "told not to leave the property for my lunch."

The employee asserts that he reasonably believed that it was acceptable to leave his patrol area immediately after punching in for his shift and to be absent for 30 minutes in order to travel to a location 15 blocks away to eat at a restaurant there. However, even though the employee testified that he had never been told not to leave his patrol area for lunch, he was aware, as he testified, of the restaurants within and immediately outside his patrol area which the employee considered acceptable for this purpose. The employee's implicit assertion that he could carry out his security duties, and be available for emergency calls, as effectively when he was 15 blocks away as when he was in the immediate vicinity of his patrol area is not credible.

After the employer decided to impose a five-day disciplinary suspension on the employee for leaving his patrol area during his shift for 30 minutes to travel to a remote location, Mary Cook, the supervisor of the employer's security division attempted to locate the employee toward the end of his shift on November 7 to provide notice of the suspension. According to Cook, she searched the employee's patrol area but could not locate him, so parked her vehicle in the mall parking lot and waited. Cook further testified that, after about 40 minutes, she observed a person walking from a location outside the patrol area, crossing Greenfield Avenue, and approaching the mall and, as the person walked nearer to her, identified him as the employee. Cook finally testified that, when she questioned the employee about his absence from the patrol area, he became evasive and agitated, and stated to her, "Listen, sweetheart, you obviously don't know who I am." The employee testified that he was not on the other side of Greenfield Avenue at the time, but was instead patrolling the parking lot that the mall shared with Burger King and other businesses which he understood to be part of his assigned patrol area. The employee also testified that, although he did call his supervisor "sweetheart," his intent was to show love and respect for her.

The ALJ credited the employer's testimony in regard to this second incident, and the commission finds no persuasive reason to overturn this credibility determination.

Cook delivered the 5-day suspension to the employee, and told him that this second incident would be reviewed by the employer for possible further disciplinary action.

Based on the two incidents which occurred on November 7, the employer discharged the employee on November 15, 2005. (1)

The two incidents of November 7 were sufficiently egregious to support a conclusion of misconduct despite the absence of prior warning. The employee, who was charged with safeguarding the security of a group of businesses and their workers and customers, absented himself from his assigned patrol area twice during a single shift, once for 30 minutes to travel 15 blocks away without notice to a restaurant not designated by the employer as an acceptable meal/break location; and once for a period of 40 minutes while he was on foot, instead of in his patrol vehicle, and would not have been able to quickly return to the mall to attend to an emergency. The employee was then insubordinate to his supervisor when she tried to discuss the first incident with him. These incidents represent an intentional and substantial disregard of the employer's interests and of the employee's duties and obligations to his employer within the meaning of Boynton Cab Co. v. Neubeck & Ind. Comm., 237 Wis. 249, 296 N.W. 636 (1941).



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Footnotes:

(1)( Back ) After November 7, 2005, the employee was apparently scheduled to be absent from work for a week to attend his grandfather's funeral.

 


uploaded 2006/03/13