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


RORY JACKSON, Employe

SNAP ON TOOLS MFG CO, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99607424MW


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 two years as a machine operator for the employer, a manufacturer of tools. His last day of work was September 30, 1999 (week 40).

On his last day of work, the employe reported for work feeling tired. When he took his break at 5:00 a.m., rather than going to the cafeteria or locker room as he usually did, the employe put his head down on his work bench and fell asleep. He made no provision for any of his co-workers to wake him up at the end of his break. Falling asleep on the job is a major rule violation under the employer's rules and warrants suspension or dismissal. Because of his previous disciplinary record, which included a recent suspension, the employe was discharged on September 30.

The issue which must be determined is whether the employe was discharged for misconduct connected with his work, under Wis. Stat. § 108.04(5).

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."

Rule violations which may justify discharge, do not always amount to misconduct. Sleeping on the job in cases in which one of the inherent responsibilities is to be alert and a failure to do so will create an immediate threat to the safety and welfare of person and property may amount to misconduct even when there is only a single instance of sleeping. If that degree of responsibility is not present, "(I)n order to find misconduct in cases of sleeping on the job the employer must demonstrate that the employe acted intentionally." Dennis M. Rainer v. Milwaukee Athletic Club, UI Dec. Hearing No. 99606151MW (LIRC December 13, 1999). In this case, the commission concludes that the employer has met this burden. The employe, who acknowledged that he believed sleeping on the job was misconduct, rather than going to the cafeteria, put his head down at his work station during his break, without making any provision for a co-worker to wake him up when break ended. While the employe contended at the hearing that he fell asleep because he was ill, he did not mention this to the manager when the manager woke him up. He did not mention his alleged illness to his supervisor, allegedly because he had poor attendance and believed his being ill might be used against him. The commission simply did not credit the employe's assertion that he was ill. The employe's actions, in sleeping at his workstation during his working hours, demonstrated such a wilful and substantial disregard of the employer's interests as to amount to misconduct connected with his employment.

The commission therefore finds that in week 17 of 1999 the employe was discharged for misconduct connected with his employment within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is modified and as modified is affirmed. Accordingly, the employe is ineligible for benefits beginning in week 40 of 1999, and until seven weeks have elapsed since the end of the week of discharge and the employe has earned wages in covered employment performed after the week of discharge equaling at least 14 times the employe's weekly benefit rate which would have been paid had the discharge not occurred.

Dated and mailed February 24, 2000
jacksro.urr : 145 : 6   MC 659.01

/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 did not recall any specific aspects of the employe's demeanor which contributed to the ALJ's belief that the employe was in fact ill. For the reasons discussed in the decision, the commission disagrees with the ALJ's credibility determination.


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