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


BRIAN S MISKOVICH, Employe

KETTLE MORAINE CLEARING INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99002263WT


On May 28, 1999, the Department of Workforce Development issued an initial determination which held that the employe had been discharged for misconduct connected with his employment. The employe filed a timely request for hearing and, on June 21, 1999, hearing was held in Watertown, Wisconsin before a department administrative law judge. On June 24, 1999, the administrative law judge issued an appeal tribunal decision affirming the initial determination. The employe filed a timely petition for 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, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe in this case worked approximately ten months as a machine operator and crew leader for the employer, a tree removal/pruning concern. The employer discharged the employe for failing to report to work as scheduled on Saturday, May 1, 1999, and the issue is whether that failure by the employe was misconduct for unemployment insurance purposes. The commission concludes that it was not, and so reverses the appeal tribunal decision.

The employe owned a dump truck and had scheduled an appointment near his former residence in upper Michigan for Saturday, May 1, for a prospective buyer to look at the truck. The employe sold the truck to the buyer in question. On Monday, April 26, the employe told one of the owners that he needed time off the next weekend in order to take care of this business. The owner said there was a good possibility the employe could go, if the employer got enough done that week. On Wednesday evening, the other owner of the employer telephoned the employe and indicated he did not care what plans the employe had that weekend, that he had to work. On Friday, April 30, the employer prepared a notice to employes stating that the construction business was seasonal and cyclical, and instructing employes to get out if the industry did not agree with their personal life. The employe went to upper Michigan as he had planned, after working just under 60 hours that week, but none on Saturday. The employer discovered that the employe had not reported to work on Saturday, and discharged the employe therefor on Sunday, May 2, 1999 (week 19).

Misconduct for unemployment insurance purposes is the intentional and substantial disregard by an employe of standards an employer reasonably may expect of its employes. A general principle resulting from this kind of case is that misconduct will not be found where the refusal by the employe to work the overtime was a reasonable one; on the other hand, where there is no reasonable basis for the employe's refusal, then misconduct will be found. In Case No. 73-A- 3750, 1976 Unemployment Compensation Manual MC at 107, the employe refused the overtime request, saying that she did not like her co-workers, she did not care whether the employer made any money, and it would be economically unfeasible for her to work and have to hire a babysitter. In finding misconduct, the appeal tribunal reasoned that the employe had failed to work overtime on all but one occasion in the previous few months and that the overtime was necessary for business reasons. In Case No. 49-A-68, 1976 Unemployment Compensation Manual MC at 102, a mechanic who refused to work overtime to complete the repairs on a truck was found to have been discharged for misconduct. The appeal tribunal reasoned that the work in question was of an emergency nature and that the employer was not unreasonable in asking the employe to perform it. The appeal tribunal also found that the work would have taken no more than one hour to complete. In Case No. 56-A-1776, 1976 Unemployment Compensation Manual MC at 103, the appeal tribunal reasoned that, when a request to work overtime is reasonable and timely, an employe's refusal to do so without good reason is misconduct.

By contrast, in 74-A-2010MS, 1976 Unemployment Compensation Manual MC at 107, the employe's refusal to work overtime on two occasions was not misconduct. The employe received only one day's notice, and he had prior commitments at those times. The employe also had worked overtime for the employer whenever adequate notice of overtime had been given. In Hjellming v. Bristol Bindery, Inc., Hearing No. 91-602767 KNG (LIRC 12-17-91), the commission found no misconduct by employes who had failed to work mandatory overtime during two weeks. The commission reasoned that the employes had legitimate reasons for their failures and that the employes generally made good faith efforts to work overtime when the employer so required. The commission has recited the cases on both sides of this issue, in order to highlight how similar the employe's circumstances were to those in which misconduct previously has not been found, and how dissimilar the circumstances are to the previous cases in which misconduct has been found. By Friday afternoon when the employe left work for the week, he had worked 59 3/4 hours that week. He had given the employer advance notice that he would be unable to work that weekend. The employe previously had worked on Sundays in order to enable the employer to finish jobs. During deer hunting season, the employe worked 14 days straight and did not go deer hunting (to show his appreciation to the employer for having allowed him to go elk hunting). The employe had scheduled a buyer for his truck, and did not want to lose him by missing the appointment and perhaps having the sale fall through. In short, the employe's request for the time off was with advance notice, and the employe had valid reasons for the time off. The employe also had worked long hours for the employer previously, when the employer needed him to do so.

The commission therefore concludes that, in week 19 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 if he is otherwise qualified.

Dated and mailed October 6, 1999
miskobr.urr : 105 : 7 MC 640.12

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/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. The administrative law judge found the employe to be "eminently credible," but nonetheless found misconduct on the ground that the employer had told the employe he could not take the Saturday in question off. The commission agrees with the administrative law judge's credibility assessment; based upon the cases cited in the commission's decision, though, the commission must conclude that the employe's taking the day off was not misconduct for unemployment insurance purposes. The commission's reversal of the appeal tribunal decision therefore is as a matter of law, and is not based upon a differing credibility assessment from that made by the administrative law judge.


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