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

DAVID M SIDDONS, Employee

CITY BREWING CO LLC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07005224MD


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 about twenty-one and one-half months as a batcher for the employer, a brewing and beverage company. He was discharged on October 26, 2007 (week 43).

The issue to be decided is whether the employee's actions, which led to the discharge by the employer, constitute misconduct connected with the employment.

The employer had a policy, of which the employee was aware, that prohibited employees from taking unauthorized breaks. Another policy, of which the employee was also aware, prohibited employees from taking breaks in an area of the workplace not set aside as a break area. The employee took an unauthorized break in an unauthorized area (the laboratory) on October 19, 2007. The employee knew that what he was doing violated the employer's policies; he took the break because there was a twenty-minute period when he had nothing to do but watch a machine. The employer considered this to be theft of time. A co-worker with whom the employee took the unauthorized break took a bottle of the employer's product out of a refrigerator in the laboratory; he and the employee both drank the product. The employer considered this theft of product. The employee had not been disciplined for any conduct violations prior to this event.

The employee was laid off for week 43 of 2007. He was also discharged on the Friday of week 43 of 2007.

In Boynton Cab Co. v. Neubeck & Ind. Comm., 237 Wis. 249, 296 N.W. 636 (1941), the leading case with respect to the meaning of the term "misconduct" as applied to unemployment insurance 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 employee, 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 employee'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 value of the swig the employee took of the employer's product was de minimis in nature and does not, under these circumstances, support a finding of misconduct. As to taking an unauthorized break in an unauthorized area, the employee had not previously been disciplined for such conduct. The employee did not expect to be fired for his conduct. The employee's unrebutted testimony was that the employer's policy provided for warnings prior to discharge. The commission finds that the employee's actions did not rise to the level of intentional and substantial disregard of the employer's interests.

The commission therefore finds that in week 43 of 2007, the employer discharged the employee but not for misconduct connected with his work with his work, 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 43 of 2007, if he is otherwise qualified. There is no overpayment as a result of this decision.

Dated and mailed March 19, 2008
siddoda . urr : 132 : 1 :  MC 658  MC 688  MC 630.16

James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

The commission did not consult with the ALJ who presided at the hearing regarding his impressions of witness credibility or demeanor. The employer did not appear at the hearing. The commission has accepted the ALJ's factual findings but reaches a different legal conclusion than that reached by the ALJ.

 

cc: Attorney Harry R. Griswold


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uploaded 2008/03/24