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

TODD W ACHTERBERG, Employee

GREAT LAKES PACKAGING CORP, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07600164WB


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 makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked twelve years for the employer, a manufacturer of corrugated containers and displays, most recently as a machine operator. He was discharged on November 7, 2006 (week 45).

The issue is whether the actions for which he was discharged constitute misconduct connected with his employment.

The night before November 3, his last day of work, the employee had a severe headache and did not sleep well. He felt better the following morning when he reported to work, but the noise of the machinery caused his headache to return, and he decided to leave work before the end of his shift as a result.

The employee's supervisor was not at work on November 3. The employee was aware that he was to report to his lead worker (Mary Lou) in the absence of his supervisor.

The employee told the scheduler, a member of management, that he was feeling ill and intended to leave work. The scheduler told the employee that he needed to let his lead worker know. As the employee was punching out of work, he observed his lead worker driving a forklift in the opposite direction. He felt too ill to pursue the lead worker, and decided not to track her down before he left.

The employee reported to work his next scheduled shift on November 6. He was discharged later that day after an investigatory meeting.

The record shows that the employee was a long-term worker for the employer who left the work site before the end of his shift because he was feeling ill, punched out, and, although he did not notify his immediate supervisor as required, did notify a member of management. These circumstances do not support a conclusion that the employee engaged in misconduct. See, Sonnentag v. Liberty Homes, Inc., UI Hearing No. 98000411EC (LIRC Nov. 3, 1998)(single incident of leaving work early without notice not misconduct); Patin Foods, Inc., v. LIRC, Case No. 97-CV-99 (Wis. Cir. Ct. Washington Co., March 27, 1998)(providing notice to individual other than immediate supervisor before leaving work before end of shift not misconduct); Widlake v. Crown Cork & Seal USA, Inc., UI Hearing No. 0440267fOS (LIRC Nov. 30, 2004)(long-term worker's notice to coworker rather than management that leaving work before end of shift error in judgment not misconduct).

The circumstances in this case are distinguishable from those in which the commission has held that failure to provide proper notice does constitute misconduct. Generally, these cases have involved time theft, or the creation of a significant quality or safety issue. See, Krueger v. Voith Paper Fabrics Appleton, Inc., UI Hearing No. 06401483AP (LIRC Sept. 15, 2006)(intentional time theft and dishonesty as to circumstances misconduct);Young v. Northern Lights Health Care Center, UI Hearing No. 04202049EC (LIRC Dec. 17, 2004)(abandonment of elderly nursing home patients without notice to management misconduct); Wagner v. Superior of Wisconsin, Inc., UI Hearing No. 01200774EC (LIRC Aug. 29, 2001)(leaving unattended machine running when left work early without permission or notice despite prior warning misconduct); Williams v. Twin City Security, Inc., UI Hearing No. 05608922MW (LIRC March 8, 2006)(misconduct when security officer left work site without notice twice during single shift and then insulted supervisor during investigation of absences).

The employee, by punching out and providing notice to the scheduler, clearly was not attempting to commit time theft. In addition, the record does not show that the employee's actions created a significant safety or quality issue for the employer, i.e., the employer testified that the employee's departure created "minimal down time" for the employer because it occurred during a scheduled break, and there is no evidence of any safety ramifications.

The employer testified that the employee may have not have been discharged if he had not displayed an inappropriate attitude on his last day of work.

The employer, however, did not offer any first-hand testimony or other competent evidence to show, as it alleges, that, on November 3, the employee displayed an inappropriate attitude when he left the work site "in a huff" because of an argument with his lead worker, and "squealed his tires" when he drove out of the parking lot.

The administrative law judge, based upon the employee's failure to have sought medical treatment, questioned whether the employee was actually suffering from a severe headache on November 3. However, it would not be unusual for a worker not to seek medical attention for a headache lasting a day or less. Moreover, the employer's testimony that the employee had stated to co-workers when he left the worksite on November 3 that he had a "Mary Lou headache" is uncorroborated hearsay.

The administrative law judge found that "the employee deliberately disobeyed the employer's policy [requiring that a supervisor be notified] because he was upset with his supervisor [lead worker] and was contemplating quitting," and, on this basis, concluded that the employee had engaged in misconduct.

However, the evidence of record shows instead that the employee did not notify his lead worker that he was leaving because he was feeling ill at the time and had already notified a member of management. Although the employee intentionally failed to provide notice to his lead worker, his illness provided a mitigating circumstance. Moreover, even if the employee had left work early not because he was ill but instead because he was upset with his lead worker, the fact that he punched out and provided notice to a member of management would militate against a conclusion that he had engaged in misconduct. See, Sonnentag, supra.; Patin Foods, supra.; Widlake, supra.

The commission therefore finds that in week 45 of 2006, the employee did not voluntarily terminate his employment within the meaning of Wis. Stat. § 108.04(7) but that he was discharged and his discharge was not for misconduct 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 45 of 2006, if otherwise qualified.

Dated and mailed June 13, 2007
achteto . urr : 115 : 1  MC 605.05  MC 658

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

 

NOTE: The commission did not confer with the administrative law judge before reversing her decision, because its reversal was not be based upon a differing view as to the credibility of witnesses based upon their demeanor, rather than the plausibility of their testimony, but instead upon a differing conclusion as to what the hearing record in fact established and upon a differing interpretation of the relevant law.


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