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

JAMIE R HINTZ, Employee

NATE'S LAWN MAINTENANCE INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06600287WB


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 eligible for benefits beginning in week 45 of 2005, if otherwise qualified.

Dated and mailed April 20, 2006
hintzja . usd : 115 : 1  MC 665.04  MC 688.1  MC 699.05

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION


The employee worked four months for the employer, a landscaping business.

During his employment, the employee was tardy five or ten minutes approximately six times and received verbal warnings from his supervisor and the employer's owner as a result.

On September 28, 2005, the employee received a written warning for smoking in one of the employer's vehicles in violation of the employer's work rules. This warning did not state a consequence for future work rule violations.

Prior to October 31, 2005, the employee received a speeding ticket while driving one of the employer's vehicles. When the employer's owner learned of this, he discharged the employee.

The employer's employee manual, which the employee received on June 23, 2005, states as follows, as relevant here:

4) Attendance: ...A pattern of...late...occurrences may result in disciplinary action, up to and including termination of employment.

5) Tobacco: Use of tobacco products is prohibited in company vehicles...

7) Driving Privilege: ...All traffic rules and laws must be obeyed 100%....

Disciplinary Action

Violation of any company rule or regulation, attitude problems, or any improper actions by the employee will result in the following:

First Offense: Verbal warning/Documented
Second Offense: Written warning/Signed
Third Offense: Suspension/Possible Termination

In this employee manual, it was stated that certain rule violations, e.g., being under the influence of alcohol or drugs on work time, would result in immediate termination, but tardiness, tobacco use, and traffic violations were not among these.

The commission has been consistent in holding, except in those cases in which the alleged conduct is sufficiently egregious, that, before there can be a finding of misconduct, the employee has to be aware or have reason to be aware that his job is in jeopardy or will be if he engages in the subject conduct. See, e.g., Hainz v. Nelson Industries, Inc., UI Hearing No. 00003095MD (LIRC Oct. 3, 2000); Marcolini v. Alma Public Schools, UI Hearing No. 78-20774EX (LIRC May 29, 1979); Munoz v. LaCosta, Inc., UI Hearing No. 02607640MW (LIRC April 4, 2003). Here, neither the warnings issued to the employee nor the language of the employee manual would have put the employee on notice that his job would be in jeopardy for receiving a speeding ticket or for committing a third work rule violation. Although the employee had received a written warning on September 28, this warning did not state a consequence for future rule violations. In addition, as noted above, a traffic violation was not listed in the employee manual as one of the work rule violations which would result in immediate termination. Finally, the employee manual does not state that a third offense would result in termination but instead that a third offense would result in a "suspension or possible termination."

The remaining question, then, is whether the subject conduct was sufficiently egregious to relieve the employer of its responsibility to make the employee aware that his job would be in jeopardy if he engaged in it.

The commission concludes that it was not. First of all, the employer must not have considered a traffic violation as meeting this standard because it did not list it as one of the work rule violations which would result in immediate termination. Moreover, the commission has generally looked for repeated traffic violations (See, Farnsworth v. Fortrans, Inc., UI Hearing No. 03004100JF (LIRC May 27, 2004), or aggravating circumstances (See, Baumann v. Potts Transport Co., Inc., UI Hearing No. 02403007GB) before finding misconduct. The evidence of record does not indicate any aggravating circumstances were present here.

cc: Nates Lawn Maintenance, Inc. (Belgium, Wisconsin)



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