P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)




Hearing No. 99004796WR

An administrative law judge 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 administrative law judge. Based on its review, the commission makes the following:


The employe worked for the employer, a general construction contractor, for about a year as a foreman. His last day of work was November 19, 1999 (week 47).

In August or September of 1999 the employe was out at a job site when the heating contractor, who worked directly for the client, notified him that it had put a hole in a newly-installed rubber roof and was unable to reach the roofing subcontractor to repair the damage. The employe attempted to contact the roofer, also without success, at which point the heating contractor asked the employe whether he could make the repair himself. The employe agreed to do so. The heating contractor asked the employe whether $100 would cover the cost of the repair, and the employe indicated that it would. After working hours that day the employe patched the roof by gluing a new piece of rubber over the hole. He did not bill the heating contractor for his services. The employer did not learn about the matter until some time in November.

In October of 1999 the employer issued a letter to all employes notifying them, among other things, that over the winter season working hours would be 7:30 a.m. through 4:00 p.m. without exceptions, and that no overtime would be allowed unless approved by the employer's president. Nevertheless, the employe permitted some of his workers to arrive at a job at 7:00 a.m. for the convenience of the client. The employe also allowed workers to stay beyond 4:00 p.m. on a few occasions when rain was in the forecast, in order to finish covering up the exposed roof before leaving for the day. When this occurred, the employe had the workers leave early on Friday so as to avoid their working in excess of 40 hours in a week.

At noon on Friday, November 19, the employer's president visited a job site where the employe was working and saw workers leaving for the day. That day the employe was discharged for the roofing incident, together with his failure to adhere to a strict 7:30 a.m. through 4:00 p.m. work schedule.

The issue to be decided is whether the employe's discharge was due to misconduct connected with her employment.

In Boynton Cab v. Neubeck, 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 employe, 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 employe'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 contended that the employe performed the roof repair without the employer's knowledge or authorization in an attempt to collect money for personal gain. The employer also asserted that it would cost $800 to repair the flashing in order to bring it up to standards so that the roofing subcontractor would cover it under its warranty. However, the commission does not believe that the employe's actions in repairing the roof evinced misconduct. The employe testified that he could not reach the roofing subcontractor and undertook the repair himself in order to prevent water damage to the inside of the building, in which ceiling tile and carpeting had just been installed. The employe stated that he knew how to do the work and did not think it was a big deal for him to make a small repair. He indicated that he did not give any thought to the question of whether his work would void the warranty. The employe testified that he intended for the employer to bill the contractor for his work, and it is undisputed that the employe never personally attempted to collect any monies from the contractor for performance of the work. Given all of the circumstances, the commission sees no reason to believe that the employe performed the roof repair for personal gain, but concludes that the employe was attempting to act in furtherance of the employer's interests by undertaking a repair needed to prevent water damage to one of the employer's projects.

With respect to the hours of work, while the employe sometimes disregarded the employer's mandated work schedule, he did so in order to accommodate a client and to ensure that work was completed. The employe also made an effort to avoid any overtime work. Although the employe's actions were unsatisfactory to the employer, they were undertaken in furtherance of its interests. The employe had never been warned about allowing workers to work outside of the mandated hours and was not placed on notice that his actions could cost him his job. Overall, while the commission can understand why the employer was dissatisfied with the employe, it is unable to conclude that he engaged in a course of conduct which evinced a deliberate and substantial disregard of the employer's interests.

The commission, therefore, finds that in week 47 of 1999, the employe was discharged and not for misconduct connected with his employment, within the meaning of Wis. Stat. 108.04(5).


The appeal tribunal decision is reversed. Accordingly, the employe is eligible for benefits beginning in week 47 of 1999, provided he is otherwise qualified. He is not required to repay the sum of $2,970 to the Unemployment Reserve Fund.

Dated and mailed April 19, 2000
knuthro.urr : 164 : MC 689

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

NOTE: The commission did not confer with the administrative law judge regarding witness credibility and demeanor. The commission's reversal does not rely upon a differing assessment of witness credibility, but is as a matter of law.



I am unable to agree with the result reached by the majority herein and I dissent. I agree with the administrative law judge. Since the school had independently contracted with the HVAC business, the employe had no reason to be involved in resolving the roof problem with the HVAC company. The employe did the work that he was not licensed to do after work hours. He agreed with the HVAC company as to what the job was worth. The employe jeopardized the warranty on the roof and the work was redone.

The employe obviously did not follow the instructions of the President who made it very clear that the winter work hours were 7:30 a.m. to 4:00 p.m. NO EXCEPTIONS. No overtime without authorization by Mills. The employe did not even bother to contact the employer about his changes. The employe implied that he was changing the hours to make it more convenient for the client but the employe testified, "Actually we had a meeting with Judy Meyers from United Services. She is the office manager. It was suggested to her that for convenience we start at 7:00 a.m., not to bump heads. Mr. Diensburg was there. We had the meeting together, I really didn't think it was a big deal, starting at 7:00 a.m. I did not notify Mr. Mills. I assumed he knew because I had guys stopping at the shop early to pick up stuff.It was for the convenience of the customer." The employe's testimony does not indicate that Meyers asked for a change in time and in fact it looks like the employe suggested the change.

For all these reasons, I would affirm the appeal tribunal decision.

Pamela I. Anderson, Commissioner

Appealed to Circuit Court. Affirmed September 22, 2000. [Circuit court decision summary]

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