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


DONALD G KREYER, Employe

MARQUETTE MANUFACTURING INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99001935DV


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 employe is eligible for benefits, if otherwise qualified.

Dated and mailed September 24, 1999
kreyedo.usd : 178 : 3 MC 659.02

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

In its petition for commission review, the employer argues that the appeal tribunal decision does not reflect several salient facts which would change the outcome. After reviewing the record, the commission determines that those facts were rejected by the ALJ in favor of other testimony to the contrary.

The ALJ did not find the employe had no reason to be in the breakroom because the employe credibly testified that he had a desk there where he kept his materials and frequently used the space to review manuals. There is no evidence in the record to support the contention that the employe only woke up because the employer closed the door. The synopsis does not mention any door closing. Finally the witness that the employer relied upon as an expert concerning the air bag leak testified that he didn't quite understand technical things and was not an expect in these matters. However, that same witness testified that the cracks he found would not have been visible from a visual inspection. The employe testified that at the time he inspected it no leak was apparent. Based on the inexpert testimony of the employer's witness, the commission is not persuaded that the employe knowingly misrepresented inspecting the axle .

As to the attendance violations, the employer chose to discipline the employe's attendance infractions with a suspension. Since no further attendance violation occurred following the suspension, this conduct will not support a finding of misconduct.

The employer finally argues that the employe's sleeping on the job was in deliberate and substantial disregard of its interests and without any mitigating circumstance. The commission disagrees. 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. The level of negligence defined as misconduct is that which manifests wrongful intent or evil design or shows an intentional and substantial disregard of the employe's duties and obligations to the employer. William J. McKibbin v. LIRC, Marten Transport, Ltd., and R.E. Harrington, Inc., No. 94-CV-0213 (Wis. Cir. Ct. Dane County Dec. 23, 1994); aff'd. William J. McKibbin v. LIRC, Marten Transport, Ltd., and R.E. Harrington, Inc., No. 05- 0234 (Wis. Ct. App. Feb. 29, 1996)(truck driver who fell asleep behind the wheel did not engage in misconduct).

In this case, the employe was upright at a table with a manual in front of him. He was only briefly asleep. It had never happened before. The is not persuaded that his sleeping was intentional or that he intended to hide in the break room. He testified unrebutted he was reading manuals there as he often did after his space in the manager's office was used for a computer. The commission accepts this testimony and concludes that the employe's fell asleep inadvertently. It therefore affirms 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 employe was fired for sleeping on the job and for saying he checked all eight axles air bags and later it was found that one was still leaking. I agree with the majority that the attendance issue did not cause his discharge and in any event the employer gave him a two day suspension for his last violation and they can not punish him twice for the same offense.

The employe was found sleeping in the break room at 8:30 a.m. No one else was in the break room. The employe's first scheduled break was at 9:00 a.m. The employe indicated that he fell asleep while reading a manual on B300 because he needed information to fix a large forklift that had a transmission that was slipping. He said he took the manual to the break room to read it. The break room was not part of the employe's normal work area. The plant manager testified that "There is a general policy with our foremen, that during work time, workers are to be in their work area. The employe's work area is wherever there is equipment. If he needs to order parts, he uses the foreman's office where there is a phone & a desk. The break room is in the machine shop area, off the main fabrication dept., above the rest rooms. The break area has 4 walls and you can't be seen from outside."

The majority cites the McKibbin decision but that is an unpublished Court of Appeals decision. McKibben was a truck driver who was fired for an accident he had after he had drunk 2 beers hours before. The employer fired him because a breathalyzer test read at .136 but the breathalyzer test was thrown out in court so the proof of his intoxication was gone. The other reasons relied on by the employer at hearing were not the reasons why the employer fired the employe.

The Commission in the past has usually found sleeping on the job to be misconduct unless there is some mitigating factor. If an employe has narcolepsy, we would not find sleeping misconduct, unless the employe goes to a secluded area to avoid detection. Ralph A. Aiken v Village of Elm Grove & LIRC, Case No. 786-525 (Wis. Cir. Ct., Milwaukee Co., March 10, 1989) was such a case where the employe was caught sleeping on the job in a secluded area while parked on a piece of heavy equipment with the motor running. The Commission found that the employe was discharged for misconduct and the court agreed.

If an employe has a medical condition that causes him to fall asleep and he fails to seek treatment after warning, we would find misconduct. In the past, we have not usually required warnings because we assume people know that they are not expected to sleep while on duty. Here the employe testified "I don't know why I fell asleep. I put in quite a few hours the day before. I have sleeplessness. I have to take a sleeping pill at night to sleep. I am restless and don't sleep well. I don't believe I took a pill the night before." The problem with this argument is that someone who needs a sleeping pill to sleep should not fall asleep on the job. The employe also presented no medical evidence that he has any condition that cause him to fall asleep at work.

The commission has found misconduct in Lisa A. Washington v. LIRC and Meritus Education Resources, Case No. CV-010214 (Wis. Cir. Ct. Milwaukee Co., May 15, 1998). The employe was an aide at a day care center with responsibility for 4 and 5 year olds. She fell asleep and left the children unsupervised. The commission found misconduct and the court affirmed.

While I have doubts that the employe tested all the air bags to 160 pounds and missed the air leak, I believe that sleeping on the job is sufficient for a misconduct connected with work finding. Therefore, I would reverse and find that he was fired for misconduct for sleeping on the job and being out of his work area when he was not on break.

__________________________________________
Pamela I. Anderson, Commissioner

cc: ATTORNEY KEVIN C POTTER
BRENNAN STEIL BASTING & MACDOUGALL SC


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