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


FRED W KUNKEL, Employe

NORSTAN COMMUNICATIONS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98002768WT


On June 16, 1998, the Department of Workforce Development issued an initial determination in the above-captioned matter which held that in week 22 of 1998 the employe was discharged and not for misconduct connected with his employment. As a result, benefits were allowed. The employer filed a timely appeal and a hearing was held before an appeal tribunal. On July 23, 1998, the appeal tribunal issued a decision which amended the week of issue and reversed the initial determination. As a result, benefits were denied. The employe filed a timely petition for commission review of the appeal tribunal decision.

Based on the applicable law, records and evidence in this case, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked for the employer, a telecommunications business, for approximately fifteen years as an installation technician. His last day of work was May 22, 1998 (week 21).

The employe performed his duties at various job sites away from the employer's office. His normal hours of work were from 7:00 a.m. through 3:30 p.m., although he had a flexible work schedule and had been given "management empowerment" to handle his own schedule.

On Wednesday, May 13, the employe's wife paged him at a job site and told him she was having car troubles. The employe left work at about 11:00 a.m. in order to assist her and did not return to work that day. On the following Monday, May 18, the employe filled out his time sheet for the previous week and incorrectly recorded that he had worked eight hours on May 13.

The following Wednesday, May 20, the employe left work half an hour early to take his wife to a doctor's appointment. On Thursday, May 21, he again left work half an hour early for another personal appointment. On both days the employe recorded that he worked eight hours.

On Friday, May 22, the employer's support process manager, Frank Rozman, confronted the employe about the discrepancies on his time sheet. When asked about the May 13 entry, the employe indicated that he had been at work that day. Mr. Rozman then reminded the employe about the call from his wife, and the employe responded, "Yes, that's true. You got me there." When asked about his early departures on May 20 and May 21, the employe indicated that he intended to make up the time, but had not yet done so. The employe stated that he felt terrible about the situation, and offered to correct the problem by making up the hours or giving up vacation time. However, the employer was unwilling to accept any proposed resolution to the matter and notified the employe he was being discharged.

The issue to resolve is whether the employe was discharged for misconduct connected with his 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 employe deliberately falsified his time records on the days in question. However, the commission is unconvinced that any deliberate falsification occurred. At the hearing the employe indicated that his actions in recording a full eight-hour day on his time sheet for May 13 were totally unintentional and that he had forgotten about leaving early. The employe explained that he was distracted by serious personal problems, that his wife was critically ill, and that he was taking anti-depressant medication. Given the employe's personal circumstances, and considering that he did not fill out his time sheet until five days after the fact, it is not hard to imagine that his early departure on May 13 might have slipped his mind.

Regarding the two early departures on Wednesday and Thursday of the following week, the employe testified that he intended to make up the hour he missed on Friday. While the employer pointed out that the employe had not, in fact, made up the time, he was discharged without being given an opportunity to do so. Further, although the employe's supervisor testified that workers are required to let their supervisors know when they alter their schedules, the employe testified without rebuttal that in the past he has made up time in this manner. Although the employe's past practice of making up missed time may have been contrary to the employer's expectations, it was not established that the employe was on notice that his actions were prohibited.

The employe worked for the employer for fifteen years with no prior disciplinary history and no record of attendance or time sheet violations. The employe presented plausible explanations for his lapses in accurate time reporting during his last week of employment, and the commission is unconvinced that his actions amounted to any more than an honest mistake or good faith error in judgment.

The commission therefore finds that in week 21 of 1998 the employe was discharged and not for misconduct connected with his employment, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The appeal tribunal decision is reversed. Accordingly, the employe is eligible for benefits beginning in week 21 of 1998, provided he is otherwise qualified. There is no overpayment as a result of this decision.

Dated and mailed: October 9, 1998
kunkefr.urr : 164 : 1  MC 630.09

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

NOTE: The commission consulted with the administrative law judge regarding the credibility and demeanor of the witnesses. The administrative law judge indicated that she doubted the employe's testimony because he was trying to justify his actions in two different ways, both by arguing that he forgot to record the hours he missed and that he had the authority to alter his schedule. While the employe did point out that he had been able to make up time in the past and intended to make up the two half-hour early departures, the commission does not consider this assertion inconsistent with the employe's testimony that he forgot about having left early on the first day in question. The administrative law judge also indicated that if the employe was making up the time he would have kept track of his hours in writing. However, the employe's testimony was that he intended to make up the time within a day or two of having left early, and the fact that he kept no written record of the hour he planned to make up does not warrant a conclusion that it was not his intention to do so. For these reasons, and the other reasons set forth in the body of the decision, the commission is unpersuaded that the employe engaged in any deliberate falsification of records.

PAMELA I. ANDERSON, COMMISSIONER (dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. I agree with the administrative law judge that the employe's conduct was a substantial disregard of the employer's interests. The senior operations manager testified "I questioned him on all three of the dates. He said that on 5/21 he was on his way home when paged at 2:35 because he had started at 7:00 AM and did not take a lunch. I told him that still didn't add up to 8 hours and he had 8 hours on his timesheet. He admitted that he left the job site early to beat the traffic.

On 5/20 he left between 11:30 and 12. He stopped at our distribution center and did not return to the job site. He indicated that the information was correct, but that he makes up the time he misses.

At first when I asked him about being gone on 5/13 he indicated he worked that day. I reminded him of a phone call from his wife regarding car problems. He responded, `Yes, that's true. Ok, you got me.'

I questioned him as to whether or not he had made up any of the time that he had said he would and he said, `No, I haven't made it up.'"

The employe's direct supervisor testified "...I had no discussions with him about altering his schedule for 5/13, 5/20 or 5/21. In the past I would get a call or a voicemail message from him if he needed to alter his schedule." The supervisor also reported "He could take flextime as long as he called in and reported his actual time on his timesheet."

I believe that the employe was under stress because of his wife's health but I also believe that he falsified his timesheet. His past practice had been to notify his supervisor if he was going to alter his schedule. He did not notify his supervisor and he did not keep track of the time he had missed.

For these reasons, I would affirm the appeal tribunal decision.

/s/ Pamela I. Anderson, Commissioner

cc:
NORSTAN COMMUNICATIONS INC 

MARK CRAWFORD
CRAWFORD PARALEGAL SERVICES


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