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


DAN J DALRYMPLE, Employe

MENARD INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99200233EC


On February 3, 1999, the Department of Workforce Development issued an initial determination which held that the employe's discharge was not for misconduct connected with his employment. The employer filed a timely request for hearing on the adverse determination, and hearing was held on March 2, 1999 in Eau Claire, Wisconsin before a department administrative law judge. On March 8, 1999, the administrative law judge issued an appeal tribunal decision reversing the initial determination. The employe filed a timely petition for commission review of the adverse appeal tribunal decision, and the matter now is ready for disposition.

Based upon the applicable law and the records and other evidence in the case, and after consultation with the administrative law judge regarding credibility, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked over 12 years, primarily as a truck driver, for the employer, a lumber yard and home products concern. The employer discharged him on January 20, 1999 (week 4), for having fallen asleep on his last day of work, January 19. The commission concludes that mitigating circumstances preclude a finding of misconduct in this case, and so reverses the appeal tribunal decision.

The employe had had a truck accident, and then back surgery. He returned to work, on modified duty, in September of 1998. At that time, and continuing to the end of his employment, he was not allowed to resume his previous driving duties, due to medical restrictions which prevented him from being able to perform some of the loading/unloading duties of drivers. On his last day of work, and while still on modified duty, one of the employe's supervisors observed the employe sleeping at his work station during work time. The employe admitted he had dozed off; he indicated that he was not feeling well, that he had a headache, and that it was warm in his work area. The employe and his wife both had the flu at the time. The employer discharged the employe pursuant to its policy that sleeping on the job is prohibited.

Misconduct for unemployment insurance purposes is the intentional and substantial disregard by an employe of standards an employer reasonably may expect of its employes. However, not every instance of sleeping on the job evinces the requisite intent to harm an employer's interests which is necessary for a finding of misconduct. Henderson v. Polaris Industries, Inc., Hearing No. 98201981EC (LIRC 4-29-99). While sleeping on the job is a very serious matter, it will not be considered misconduct absent some evidence that it was done in deliberate disregard of the employer's interests or that it amounted to negligence of a certain degree or recurrence. Neubauer v. Milwaukee School of Engineering Corp., Hearing No. 96607193MW (LIRC 2-18-98). In that case, the commission found no misconduct despite the employe's having fallen asleep at work on three separate occasions in her four years of employment. One of the instances occurred at the end of a 12-hour shift in a 68-hour work week. The remaining two incidents were similar to the one in the present case.

A 1988 Milwaukee County Circuit Court case also suggests that more is necessary for a finding of misconduct than occurred in the instant case. In Aiken v. Village of Elm Grove, Case No. 758-525 (Milwaukee Cty. Cir. Ct. 3-10-88), the court affirmed the commission's finding of misconduct for sleeping on the job. The finding of misconduct was upon the third occasion, which occurred when the employe drove his front end loader into a secluded wooded area. The court phrased the matter as the employe's having gone to sleep as opposed to falling asleep. Given the employe's driving of the loader to a secluded wooded area, the employe's actions in that case were deemed intentional.

It is not so in this case. The employe did not seclude himself with the intent of napping; nor was there any evidence that he acted negligently in failing to prevent his falling asleep. The commission therefore finds that, in week 4 of 1999, the employe was discharged but 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 unemployment insurance beginning in week 4 of 1999, if he is otherwise qualified.

Dated and mailed July 6, 1999
dalryda.urr : 105 : 6 MC 659.02

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

NOTE: As indicated above, the commission conferred with the administrative law judge before determining to reverse the appeal tribunal decision in this matter. The administrative law judge believed the employe might not have been feeling well; the administrative law judge found misconduct based upon the employe's sleeping and his failure to have expressly indicated to the employer that he had the flu. While neither the administrative law judge nor the commission credited the employe's denial at hearing of having fallen asleep, there is no basis in the record to disbelieve the employe's assertion of illness. The employe's work area was at a temperature of 66 degrees; nonetheless, the employe felt warm and had a headache. That the employe did not expressly state to the employer that he had "the flu" does not require the inference that the employe was not ill. As indicated in the decision, though, mitigating factors such as illness can, and in this case does, counter the "presumption" that one's falling asleep is an intentional act. For these reasons, and those stated in the body of the decision, the commission has reversed the appeal tribunal decision.

Pamela I. Anderson, Commissioner (Dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. The assistant general manager testified that the employe told him "I'm not going to sit here and lie to you. I dozed off. I don't know how long it was. It could have been 5 minutes or 1 hour.he had been having a headache and the area was so warm he dozed off." The assistant general manager then "had the temperature checked in the area. It turned out to be 66 degrees in the area the employe was in. I checked out all of the employe's doctors notes to see if he was on any medication. There was nothing stating he was on any type of medication."

The employe's version was "I'd been suffering from the flu. I came back from the bathroom and went back and sat down. I had a cold and was having chills off and on. I'd taken some Tylenol. I closed my eyes and put my head down because I had a headache." The employe also testified, "I was not sleeping during this time. I was not feeling well. I'd taken the Tylenol and I sat down there. I just figured I'd rest my eyes and see if the headache would go away. Then I started back to the duties they gave me. I do not know how long Mr. Radtke was watching me. I remember seeing him walk past my left side. No, he was not stopping to observe me. I do not think I dozed off at any point. I was resting my eyes because I had this tremendous headache."

I found the employer much more credible than the employe. I believe he told the employer he dozed off because the room was warm and he had a headache. The employe's own testimony varied between whether he had the flu or a cold. The employer testified "in regard to whether the employe ever came to me or a supervisor in the past saying he was not feeling well and needed to go home, while he was in the modified duty area he went to his supervisor numerous times. If they are not feeling well, they can go home and he did many times." The employer denied that he told the employer that he had the flu. I believe if he had had the flu he would have told the employer at the time of the incident.

The majority mention the Aiken v. Village of Elm Grove case. That case involved an employe that had narcolepsy which is usually a mitigating factor. In that particular case, it was apparent that the employe was aware ahead of time when he was going to fall asleep. The fact that he drove the loader to a secluded area was the decisive factor in the case. If the employe had fallen asleep because he truly had the flu, this would be a different case for me. I do not believe the employe was credible.

For these reasons, I would agree with the result of the administrative law judge.

_____________________________________
Pamela I. Anderson, Commissioner


Appealed to Circuit Court.

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