LOUIS A SANTINI, Employee

AKAL SECURITY INC, Employer

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 and after consultation with the ALJ, the commission makes the following modifications:

Replace the seventh sentence in the sixth paragraph under the Findings of Fact and Conclusions of Law with the following:

He maintained that his cell phone alarm was set to go off every 15 minutes in order to make sure he performed his rounds timely.

Delete the seventh and ninth sentences in the tenth paragraph under the Findings of Fact and Conclusions of Law.

The decision of the administrative law judge, as modified, is affirmed. Accordingly, the employee is ineligible for benefits beginning in week 50 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. The employee is required to repay the sum of $4,193 to the Unemployment Reserve Fund.

Dated and mailed July 7, 2006
santilo . umd : 150 : 4  MC 659.01

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

The employee petitioned the appeal tribunal decision arguing that his discharge was not for misconduct connected with his employment. Procedurally, the petitioner claimed that he was unaware of his inability to question witnesses at the hearing given his union representative. However, a review of the record reflects that the administrative law judge properly explained that the employee had the right to confer with his union representative regarding examination of witnesses and, in that manner, could suggest questions. Additionally, while the petition included offers of new evidence and documents, the record does not suggest that the employee was improperly denied the opportunity to present evidence at the hearing, and there is nothing to suggest that any of the offered facts are "newly discovered." As such, no new hearing for additional evidence will be ordered.

The crux of the employee's petition is that he was not intentionally sleeping on November 30, 2005. The employee and the employer's lieutenant presented conflicting evidence regarding the employee's condition that morning. Following a careful review of the record and, after consultation with the administrative law judge, the commission agrees that the employee was intentionally sleeping, albeit for a pre-planned short period. In particular, the employee situated himself in a darker area that was under construction, near the building entrance. This together, with the fact that the employee conceded that his cell phone was set to vibrate after 15 minutes, leads the commission to the conclusion that his conduct was intentional. This conduct was a serious violation, given the inherent responsibilities of being a security guard at a federal courthouse. The remaining arguments made by the petitioner in the petition for review were also made at the hearing. The administrative law judge was not persuaded by these arguments and, after considering the evidence, the commission also finds these arguments unpersuasive. The appeal tribunal decision addresses these arguments satisfactorily and the commission sees no need to comment further on them. For these reasons, the appeal tribunal decision, as modified, is affirmed.

cc: Gerald Bolyaid

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uploaded 2006/07/10