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

ANGEL D JONES, Employee

THE COPPS CORPORATION, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05005630MD


An administrative law judge 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 administrative law judge. Based on its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked for the employer, a grocery store, for approximately six months as a deli clerk. Her last day of work was September 7, 2005. She was discharged on September 8, 2005 (week 37).

On September 6, 2005, the employee notified the employer that she would be late for work due to a bus accident. The employee checked the clock at the front of the store when she reported for work and noted it said 3:00 p.m. The employee then filled out a paper time card showing a start time of 3:00 p.m. The employee's manager was present when the employee reported to work, and signed off on the time card without questioning it. The manager left work for the day at 8:00 p.m., and the employee submitted her time card to the manager before she left the store. The employee recorded a sign-out time of 10:00 p.m. However, after submitting the time card, the employee found out she would have no ride home at 10:00 p.m. and would need to take the bus at 9:30 p.m. The employee left work without correcting her time card.

The employe contended that its video cameras recorded the employee arriving at 3:31 p.m. and leaving at 9:28 p.m. on September 6, and that it showed the employee taking a twenty-minute break that day, in contrast to the ten-minute break she reported on her time card. On September 7, the employee was suspended pending investigation, and on September 8 she was discharged for theft of time.

The issue to be decided is whether the employee's discharge was due to misconduct connected with her employment.

In Boynton Cab v. Neubeck, 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 employe, 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 employe'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' within the meaning of the statute."

The employer contended that the employee engaged in time theft. However, the employer did not establish that the employee falsified her time card. The employee testified that she arrived at work at 3:00 p.m., consistent with what she wrote on her time card, and did not admit to taking an extended break. Although the employer contended that it had a videotape showing a later arrival time and a longer break than what was recorded on the time card, the employer did not bring the videotape to the hearing, giving the employee no opportunity to view the tape or rebut its contents.

While the employee conceded that the departure time shown on her time card was inaccurate, she provided a credible explanation for her actions in recording the incorrect time. The employee filled out her time card before her manager left for the night, at which point she expected to work until 10:00 p.m. The employee explained that the time card was no longer in her possession when she left work, and it was not established that the employee would have had an opportunity to correct the time card prior to her suspension the following day or that her failure to do so was more than an oversight. Under the circumstances, the commission sees no reason to assume that the employee deliberately falsified her time card in an effort to be paid for time she did not work, and it concludes that her actions in recording an incorrect departure time are best viewed as an isolated time card error.

The commission, therefore, finds that in week 37 of 2005, the employee was discharged and not for misconduct connected with her employment, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 37 of 2005, provided she is otherwise qualified. There is no overpayment as a result of this decision.

Dated and mailed May 2, 2006
jonesan . urr : 164 : 4    MC 630.09  MC 697

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

 

NOTE: The commission conferred with the administrative law judge regarding witness credibility and demeanor. The administrative law judge did not relate any demeanor impressions she had of the witnesses that led to her decision.


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