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

KEITH O KRUEGER, Employee

VOITH PAPER FABRICS APPLETON INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06401483AP


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 20 of 2006, 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 September 15, 2006
kruegke . usd : 115 : 1  MC 630.07  MC 630.09

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION


The employee worked more than twelve years as a winder operator for the employer, a manufacturer.

In 1995, the employee received a disciplinary suspension for leaving company property during his scheduled shift without permission and without clocking out.

On May 4, 2006, ten minutes before his scheduled break, and without permission and without clocking out, the employee left company property to travel in his vehicle to a convenience store. The fact that the employee was observed driving his vehicle into the employer's lot during his shift was reported to the employer's production superintendent. The production superintendent questioned the employee about it. The employee stated to the production superintendent that he had driven his vehicle to the back of the mill to dump some garbage into the employer's dumpster.

When the operations manager returned to work on May 11, 2006, he was told about the May 4 incident, that the production superintendent had interviewed a witness offered by the employee who indicated he actually knew nothing of the incident, and that the production superintendent had inspected the dumpster immediately after questioning the employee on May 4 and there was no garbage in it.

The operations manager met with the employee on May 11. The employee admitted in this meeting that he had left the work site on May 4 before his scheduled break, without permission and without clocking out, and that he had fabricated the story about using his personal vehicle to dump garbage into the employer's dumpster. After further investigation and consideration, the employer discharged the employee on May 15, 2006.

The employee essentially admitted to time theft, i.e., to leaving the job site, without permission and without clocking out, at a time when he was not scheduled to be on break. The commission has always placed special emphasis on the integrity of an employer's time/payroll system, and has consistently held that an intentional theft of time constitutes misconduct. See, Morales v. Prime Care Health Plan, UI Hearing No. 97605882MW (LIRC Aug. 26, 1998); Poindexter v. Northwest General Hospital, UI Hearing No. 98606560MW (LIRC Jan. 27, 1999); Little v. Kentucky Fried Chicken, UI Hearing No. 02008297JV (LIRC May 20, 2003); Moore v. Alexian Village of Milwaukee, Inc., UI Hearing No. 05608396MW (LIRC Feb. 23, 2006).

In addition, the employee lied to the employer about the incident. Trust is an essential component of the employment relationship. The commission and the courts have been consistent in holding that an employee's dishonesty in the course of this employment relationship supports a conclusion of misconduct. See, Gregory v. LIRC and MPS, Case No. 97-CV-001333 (Cir. Ct. Milw. Co. Dec. 4, 1997) (misconduct found where employee represented to employer on the date of absence that she would not be able to report to work due to a family emergency when in fact she engaged in election activities that day); Wise v. ABF Freight System, Inc., UI Hearing No. 03002541MD (LIRC Dec. 4, 2003); Lake v. Owen Ayres & Associates, Inc., UI Hearing No. 03002845MD (LIRC March 16, 2004).

This dishonesty, coupled with the intentional time theft, is sufficient to support a conclusion of misconduct here.

The employee asserts that, during the time period relevant here, with management knowledge, other employees left the work site without permission and without clocking out during work hours and were not discharged or even disciplined. However, the employee failed to prove this assertion. First, he failed to specify which employees engaged in this practice and when. In addition, he failed to show that management was aware, or had reason to be aware, that this was occurring. Although his witness testified that workers left the work site without permission and without punching out during work hours, she admitted that she did not think that management knew about it. Finally, as discussed above, the employee not only admitted to engaging in this practice, but also admitted to lying to the employer when he was questioned about it. There was no assertion by the employee that any of these other employees had lied to the employer about absences from the work site during work hours.

The employee argues further that he was unaware of any company policy that "leaving company premises during working hours would lead to dismissal." However, the employee had reason to be aware as the result of his 1995 discipline that the employer considered such conduct unacceptable. The commission has held employees responsible for complying with employer policies of which they have reason to be aware. See, Harden v. US Cellular, UI Hearing No. 05606674WK (LIRC Jan. 31, 2006); Forster v. Maritime Saving Bank, UI Hearing No. 02003296WK (LIRC March 14, 2003).

In addition, the fact that the employee fabricated a falsehood when the production supervisor questioned him certainly suggests that he was aware that leaving the work premises during work hours without permission and without clocking out was unacceptable to the employer.

However, it is not enough to show that an employee has reason to be aware that a certain practice is unacceptable to an employer. 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); Kovach v. Farm/Fleet Janesville, Inc., UI Hearing No. 05005166WK (LIRC Feb. 24, 2006).

Here, the employee's conduct was sufficiently egregious to support a conclusion of misconduct even in the absence of prior warning that his job would be in jeopardy if he engaged in it. As discussed above, the employee's offenses were intentional and implicated two mainstays of any employment relationship, i.e., the integrity of the time/payroll system, and the expectation of trust and honesty.

Finally, the employee contends in his petition that he was denied due process because one of his witnesses was not permitted to testify. However, the employee explained to the ALJ at hearing that this witness would be testifying as to the union's blackballing of the employee and the union's failure to capably represent his interests. Neither of these subjects would be relevant to the matters at issue here and the ALJ's ruling excluding this testimony was correct.



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