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


ONEAL JEFFERSON, Employe

HEINN TREND CORP, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99608700MW


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 five years as a custodian for the employer, a manufacturer of loose-leaf binders. The employe's last day of work was December 8, 1999 (week 50), when he was discharged. The employer discharged the employe for swiping another worker's timecard in violation of its policy.

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

On November 11, 1999, the employe's girlfriend was observed swiping his timecard. On December 7, 1999, the employe and his girlfriend, who also worked at the same plant, were leaving the plant after their shift had ended at 3:15 p.m. The two retrieved their coats and then returned to swipe their timecards out. The employe's girlfriend went to the bathroom, and the employe swiped her timecard out for her. On December 8, 1999, the employer discharged the employe for his actions in swiping out another worker's timecard on December 7, 1999.

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's Handbook indicated a worker could be discharged for "(s)wiping of or tampering with the time badge of another employee." The employer's Handbook also provided for discipline for repeatedly failing to "swipe time badge in and out." The Benefits and Conditions of Employment Statement indicates that a worker is not to "tamper with, falsify or punch any other employee's time card." The employe testified that he believed "swiping," meant "stealing" the timecard of another worker. He asserted that he did not understand the Conditions of Employment Statement to have forbidden punching out a co-worker's timecard. However, the employe testified that he read both the Benefits and Conditions Statement and the Handbook. The Handbook specifically provides discipline for failing to swipe one's own timecard in or out. This should have suggested to the employe that the employer had a definition of "swiping" that was not the same as "stealing."

Further, "swiping cards" is a common expression and is not limited to timecards. Automatic teller machine (ATM) cards and credit cards are also swiped. The commission did not credit the employe's explanation because he testified that nobody had swiped his card in the past, yet the employer's witness specifically saw the employe's girlfriend punch him out on November 11. While no financial harm was done to the employer on the final occasion because the employe's girlfriend was not paid for additional time by the employe's actions, the employer clearly has an interest in ensuring that workers do not punch each other out. This was demonstrated by the fact that on November 11, the employe's girlfriend punched the employe out, but he was nowhere to be seen. The employer suspected that the employe was no longer at work. A clear and easy to follow policy such as the employer's prevents such problems. Under the circumstances, the commission concludes that the employe's actions, in swiping his girlfriend's timecard in violation of its policies, demonstrated such a wilful and substantial disregard of the employer's interests as to constitute misconduct connected with his work.

The commission therefore finds that in week 50 of the employe was discharged for misconduct connected with his employment within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employe was paid benefits for weeks 50 of 1999 through 12 of 2000, amounting to a total of $2,808.00 for which he was not eligible and to which he 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 50 of 1999, and until seven weeks elapse since the end of the week of discharge and the employe has earned wages in covered employment equaling at least 14 times the weekly benefit rate which would have been paid had the discharge not occurred. The employe is required to repay the sum of $2,808.00 to the Unemployment Reserve Fund. The initial benefit computation (UCB-700) issued on December 9, 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 March 31, 2000
jeffeon.urr : 145 : 7 MC 697

/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 found the employe credible in part because the employe said he believed swiping meant stealing a co-worker's timecard with such a straight face that the ALJ concluded that he truly believed it. However, for the reasons discussed in the commission's decision, it disagrees with the ALJ's credibility determination.

NOTE: Repayment instructions will be mailed after this decision becomes final. The department will withhold benefits due for future weeks of unemployment in order to offset overpayment of U. C. and other special benefit programs that are due to this state, another state or to the federal government.

Contact the Unemployment Compensation Division, Collections Unit, P. O. Box 7888, Madison, WI 53707, to establish an agreement to repay the overpayment.

cc: ATTORNEY STEPHEN BYERS
LEGAL AID SOCIETY OF MILWAUKEE


[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ] 1