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

VINCENT L GRAHAM, Employee

OGDEN & CO INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 08605688MW


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 25 of 2008, 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 December 23, 2008
grahavi . usd : 115 : 1  MC 630.09

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION


The employee worked nine months as a painter for the employer, a real estate management company.

The commission agrees with the ALJ that the more credible evidence of record shows that the employee, even though he claimed to have started work at 8 a.m. on June 12, was not actually present at the work site until 8:40 a.m. or after.

First, it is unlikely that the employee, had he actually been present at the work site as early as 7:50 a.m., would not have immediately contacted his supervisor upon discovering that he did not have a key to get into the building, particularly in view of his testimony that he and his supervisor had "two-way" communication, i.e., "There was no 'you call me or I call you' - either he called me or I called him." Not only could the employee, without the key, not use the building's restroom but he could not do his job because he did not have access to the painting materials he needed.

In addition, the employee gave conflicting and sometimes evasive testimony. For example, the employee testified that he did not show up for work on June 13 because it was raining, later acknowledging that there was "no policy that you don't report to work if it is raining," but either his supervisor would call him or he would call his supervisor to find out if he should report to work that day, neither of which occurred on June 13. It is also interesting to note that the employee reported to work on June 16 even though it had rained that morning and was still misting when he reported to the job site. The employee also explained that he did not report the missing key to his supervisor after work on June 12 because he was fired the next day. Beside the fact that this does not make sense since he would not have known on the evening of June 12 that he was going to be fired, he conceded after giving this testimony that he was actually not fired until June 16.

However, even if the employee's testimony that he reported to work at 7:50 and then left the work site at 8 a.m. on June 12 were credited, taking into account the supervisor's testimony that the employee was not present at the work site between 8:30 and 8:40 or a few minutes after, the record would still show that the employee reported working a period of at least 40 minutes when he was not actually present at the work site. This is falsification of time reporting/time theft which the commission has consistently held constitutes misconduct. See, Morales v. Prime Care Health Plan, UI Hearing No. 97605882MW (LIRC Aug. 26, 1998); Little v. Kentucky Fried Chicken, UI Hearing No. 02008297JV (LIRC May 20, 2003); Krueger v. Voith Paper Fabrics Appleton, Inc., UI Hearing No. 06401483AP (LIRC Sept. 15, 2006).

The employee argues that he was permitted to take bathroom breaks during work time. However, a period of 40 or more minutes would not be considered a reasonable bathroom break, particularly where, as here, it involved leaving the work site without notice to or permission from the employer.

The commission finally notes that the employee followed this up by not showing up for work the next day, June 13, without valid reason or notice to the employer.



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