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

SAMUEL D ROSS, Employee

G S HYDRAULICS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 09601827MW


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 one year as a warehouseman for the employer, a manufacturing business. He was discharged effective January 23, 2009 (week 4).

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

The employee's hours of work each weekday were 8:00 a.m. until 5:00 p.m.

Prior to January 13, 2009, the employee had received warnings for using his personal cell phone at work. The employee understood the employer expected him to be attending to work responsibilities during the time he was punched in.

Around 3:00 p.m. on January 13, 2009, the employee learned from a coworker that the employee's vehicle, which was parked in the employer's lot, had a flat tire. It got dark before the end of the employee's shift, and the employee testified it was very cold that day, i.e., 40 degrees below zero.

As a result, the employee was very concerned about waiting until his shift was over to attempt to change or repair the tire on his vehicle.

The employee notified his supervisor around 3:30 p.m. that he had a flat tire and was going out to the parking lot to fix it, and his supervisor said, "Okay, that's fine."

The employee did not punch out before leaving his work station to repair/change the flat tire. The employee spent about 30 minutes fixing his tire but was unable to remove the tire so he filled it with air; came back in, told his supervisor he had put air in the tire and was going home; and his supervisor said, "Okay." The employer does not allege that the employee then failed to punch out when he left.

The employee was discharged on January 23 for failing to punch out while he was away from his work station working on his flat tire on January 13.

The employer did not offer competent evidence to rebut the employee's testimony that he provided notice to, and received permission from, his supervisor to leave his work station to fix his tire during his shift. The employee's supervisor (Greg Jones) did not testify at hearing. The employer's only witness was Thomas Nicholson (Nicholson), the Manager of Operations and Finance, who was not present when the employee and his supervisor discussed the flat tire on January 13. Nicholson's testimony that the employee's supervisor stated at the discharge meeting that the employee had not told him he was going outside to fix his tire on January 13 constitutes competent evidence as to what the supervisor stated at the meeting, but not competent evidence as to the truth of this statement.

Although Nicholson indicated at the hearing that the supervisor was not present at the hearing because he had foot surgery the prior week, the employer did not request a postponement or continuance of the hearing in order to obtain the supervisor's testimony.

The ALJ did not credit the employee's testimony that he had provided notice to, and received permission from, his supervisor to leave the work site and fix his tire on January 13. However, an ALJ is only required to make a credibility determination if there is conflicting competent evidence, or if it appears certain evidence may be inherently incredible. See, De Wane v. Services Plus, UI Hearing No. 07401063GB (LIRC Aug. 17, 2007). Here, the employer, even though it would have had the opportunity to do so if it had called the supervisor as a witness, failed to rebut the employee's testimony that he provided notice and received supervisory permission to repair/change his tire during his shift. Consequently, there is no conflicting competent evidence in this regard. Moreover, this testimony by the employee is not inherently incredible.

As a result, the competent evidence of record establishes that the employee provided notice to, and received permission from, his supervisor to leave his work station during his shift to fix his tire.

The question then becomes whether the employee engaged in misconduct when he failed to punch out to complete this task.

The commission has been consistent in holding, except in those cases in which the alleged conduct is sufficiently egregious, that, before there can be a finding of misconduct, the employee has to be aware or have reason to be aware that his job is in jeopardy or will be if he engages in the subject conduct. See, e.g., Hainz v. Nelson Industries, Inc., UI Hearing No. 00003095MD (LIRC Oct. 3, 2000); Marcolini v. Alma Public Schools, UI Hearing No. 78-20774EX (LIRC May 29, 1979); Kovach v. Farm/Fleet Janesville, Inc., UI Hearing No. 05005166WK (LIRC Feb. 24, 2006).

Here, although the employee concedes he understood the employer expected him to be attending to work responsibilities during the time he was punched in, the record does not show that the employee was aware, or had reason to be aware, that failing to punch out for 30 minutes to attend to a personal task would result in his discharge. The employer admits that its handbook does not address this, and there is no other evidence showing that the employee understood, or had reason to understand, this to be the employer's policy.

The remaining question, then, is whether the subject conduct was sufficiently egregious to relieve the employer of its responsibility to make the employee aware that his job would be in jeopardy if he engaged in it.

The commission has always placed special emphasis on the integrity of an employer's time/payroll system. See, e.g., Morales v. Prime Care Health Plan, UI Hearing No. 97605882MW (LIRC Aug. 26, 1998); Poindexter v. Northwest General Hospital, UI Hearing No. 98606560MW (LIRC Jan. 27, 1999).

The commission has also consistently held that an employer must show that the employee intended to violate the integrity of the time/payroll system in order to establish misconduct. See, Ostrowski v. Royalton Manor, UI Hearing No. 012012013EC (LIRC Dec. 21, 2001); Cornils v. Ultra Mart Foods, Inc., UI Hearing No. 02402775AP (LIRC March 11, 2003).

Factors the commission has considered in determining whether such intent was present include whether the employee made the time up (see, Ostrowski, supra); whether the employee provided notice to/received permission from management to leave work during his shift (see, Wallin v. Franciscan Skemp Medical Center, Inc., UI Hearing No. 07000980LX (LIRC June 22, 2007); Olson v. Alltrux Leasing & Paclease, UI Hearing No. 02007848WK (LIRC May 15, 2003)); whether the employee subsequently lied about, or otherwise attempted to cover up, his failure to punch out (see, Krueger v. Voith Paper Fabrics Appleton, Inc., UI Hearing No. 06401483AP (LIRC Sept. 15, 2006); and whether the employer emphasized in its rules or otherwise that it considered inaccurate time reporting a major rule infraction (see, Rogers v. Hutchinson Technology, Inc., UI Hearing No. 06202000EC (LIRC March 21, 2007); Olson, supra).

Although the employee did not make up the time, he did provide notice to and receive permission from his supervisor to fix his tire during his shift, he never attempted to cover up his failure to punch out, and he had no reason to be aware that the employer considered this failure to be a major rule infraction. The employer failed to sustain its burden to prove misconduct.

The commission therefore finds that in week 4 of 2009, 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 4 of 2009, if otherwise qualified.

Dated and mailed June 24, 2009
rosssam . urr : 115 : 5   PC 714.04  MC 697

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

 

NOTE: The commission conferred with the administrative law judge before reversing his decision. The ALJ indicated he had not relied upon impressions of witness demeanor in making his findings of fact. In addition, the ALJ did not identify any competent evidence to support his finding that the employee had failed to provide notice to, or receive permission from, his supervisor before leaving his work station to attend to the flat tire on his personal vehicle.

 


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