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

FRANCES P HOWE, Employe

WAUSAU HOSPITAL INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99002053WU

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 employe worked for about 14 months as a housekeeping aide for the employer, a hospital. Her last day of work was April 30, 1999 (week 18), when she was discharged.

The issue which must be decided is whether the employe's actions, which led to her discharge by the employer, amounted to misconduct connected with her employment.

During the course of her employment, the employe was frequently absent. She was given a verbal warning regarding her attendance on June 16, 1998. She had been off on seven separate occasions, for a total of 17 days. The employe then received a written warning on August 7, 1998 for attendance, the second step in the employer's disciplinary policy. She did not provide reasons, or call on July 11 and August 5. The employe was given a decision-making leave for excessive absenteeism, after missing a total of 71 days of work.

On April 29, a shift leader was making the rounds, and had been asked by a nurse to clean a particular room, because a patient was being admitted to that room from the emergency room in short order. There was no bed in the room so the shift leader thought perhaps it had not been cleaned. She paged the employe but when told about the room, the employe said she had already cleaned it. The shift leader then discovered that the room had not been cleaned. There were papers on the floor. The shift leader opened the night stand and found a needle cap and some hair, as well as some tissue or paper. The bed light and heart monitor were dusty. The floor had brown markings, and it appeared that the floor had not been mopped.

The shift leader paged the employe again and did not get a response. Workers are to wear their pagers. Because the employe did not respond, the shift leader, other housekeepers and the nurse cleaned the room. The shift leader later saw the employe in the hallway and mentioned that the room was not clean. The employe became very upset and stated that the supervisor had not cleaned the room. She raised her voice and indicated that certain people had not seen the supervisor clean the room. The employe became louder and louder.

In Boynton Cab Co. v. Neubeck & Ind. Comm., 237 Wis. 249, 296 N.W. 636 (1941), the leading case with respect to the meaning of the term "misconduct" as applied to unemployment compensation in the United States, the court said, in part, as follows:

" . . . the intended meaning of the term 'misconduct' . . . is limited to conduct evincing such wilful or wanton disregard of an employer's interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer's interests or of the employee's duties and obligations to his employer. On the other hand mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good-faith errors in judgment or discretion are not to be deemed 'misconduct' within the meaning of the statute."

The employer asserted that the employe's behavior on April 29, combined with her attendance record, constituted misconduct connected with her work. The commission agrees.

The employe's attendance was very poor. While the employe often had valid reasons for her absences, she occasionally failed to call in to report her absences. In addition, the employe received warnings for her attendance, and was or should have been aware that her job was in jeopardy, at least with regard to her attendance.

However, it was the employe's actions in telling the shift leader that she had cleaned a room which she clearly had not, and yelling at the shift leader when the shift leader tried to discuss the matter with her, which demonstrates her poor attitude toward her work with the employer. The employe asserted that she had in fact cleaned the room, however, the commission cannot credit her assertion, because clearly the room was not clean. It might be the case that a worker will be in a hurry and carelessly clean a room, and this room might not be perfectly clean. However, it is the number and magnitude of the problems found by the employer which convinces the commission that the employe never cleaned the room. Given that the room was needed for nearly immediate occupancy by a patient, the employe was completely unjustified in telling the shift leader that she had cleaned the room.

The shift leader's attempt to discuss the matter later was reasonable, and the employe's loud accusations that the shift leader had not in fact cleaned the room were disrespectful and uncalled for. Thus, the employe's actions on her last day of work demonstrated such a wilful and substantial disregard of the employer's interests as to constitute misconduct connected with her work.

The commission therefore finds that in week 18 of 1999 the employe was discharged for misconduct connected with her employment within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employe was paid benefits for weeks 19 through 41 of 1999, amounting to a total of $3,473.00 for which she was not eligible and to which she is not entitled, within the meaning of Wis. Stat. § 108.03(1). Pursuant to Wis. Stat. § 108.22(8)(a), the employe is required to repay such sum to the Unemployment Reserve Fund.

The commission further finds that waiver of benefit recovery is not required under Wis. Stat. § 108.22(8)(c), because although the overpayment did not result from the fault of the employe as provided in Wis. Stat. § 108.04(13)(f), the overpayment was not the result of a department error. See Wis. Stat. § 108.22(8)(c)2.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employe is ineligible for benefits beginning in week 18 of 1999, and until seven weeks have elapsed since the end of the week of discharge and she has earned wages in covered employment performed after the week of discharge equaling at least 14 times her weekly benefit rate which would have been paid had the discharge not occurred. She is required to repay the sum of $3,473.00 to the Unemployment Reserve Fund.

The initial benefit computation (UCB-700), issued on May 2, 1999, is set aside. If benefits become payable based on work performed in other covered employment, a new computation will be issued as to those benefit rights.

For purposes of computing benefit entitlement: Base period wages from work for the employer prior to the discharge shall be excluded from any computation of maximum benefit amount for this or any later claim. If the employe was also paid base period wages from work by other covered employers, the excluded wages shall be used to determine benefit eligibility. However, any benefits otherwise chargeable to a contribution employer's account shall be charged to the fund's balancing account.

Dated and mailed November 24, 1999
howefr.urr : 145 : 7   MC 605.01  MC 640.05

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission discussed witness credibility and demeanor with the ALJ who held the hearing. The ALJ stated that she was "not convinced" that the employe failed to clean the room, and in fact believed the employe's testimony that she did clean the room. The ALJ however, did believe that the room was still somewhat dirty. She did not believe the employe's assertion that the employer was setting her up. The commission disagrees with some of the ALJ's findings of fact, in particular the commission believes that the employe did not clean the room, for the reasons discussed in its decision.

cc: LINDA ROTH
UC MANAGEMENT SERVICES

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