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

WADE R PAVELETZKE, Employee

TOMSONS OF APPLETON INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 08401130AP


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 for the employer for 15 years, the final 10 as an assistant manager.

He was discharged on March 18, 2008 (week 12), for repeatedly failing, after warning, to clock in at the start of his shift.

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

It is undisputed that the employee arrived at work 15-30 minutes prior to the start of his scheduled shift each work day. The employee did not expect to be paid for this time, which he regarded as planning time. The employee explains that he would become so involved in work activities that he would frequently forget to clock in at the start time for his shift. As a result, other management staff would later have to take 10-15 seconds to "edit" his start time on the employer's time accounting system since workers were not permitted to edit their own start time.

The employee's supervisor issued written warnings to him regarding this time accounting issue on October 29, 2007, and March 3 and 13, 2008. In the March 13 warning, the supervisor stated that "failure to meet these expectations could result in termination of your employment..."

The employee again failed to clock in at the start of his shift on March 17 and was discharged as a result.

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 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 employee's failing here does not constitute either an intentional or a substantial disregard of the employer's interests, or his duties and obligations to the employer, within the meaning of Boynton. There is no allegation of time theft. In fact, the employee was in effect working 15-30 minutes each work day without pay. The employer apparently did not object to obtaining services from the employee without having to pay him for them, and it was the performance of these unpaid services which interfered with the employee's consistent recording of his scheduled start time. The employer could have resolved this issue very easily by directing the employee to clock in when he began working even though it was before the start of his scheduled shift, or, if they did not want to pay him for this extra 15-30 minutes each work day, directing him not to report to the work site until the start of his scheduled shift. The employer did not take either of these approaches but continued permitting the employee to work for free, and then citing him for failing to carry out an administrative task rendered more difficult for him as the result of this unpaid work.

The commission therefore finds that in week 12 of 2008, 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 12 of 2008, if otherwise qualified.

Dated and mailed August 15, 2008
pavelwa . urr : 115 : 1 MC 605.09

James T. Flynn, Chairperson

/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 based upon a differing view as to the credibility of witnesses, but instead upon a differing conclusion as to what the hearing record in fact established and upon a differing interpretation of the relevant law.

cc: Tom's Drive In


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