SECOND DIVISION

									November 18, 2003

No. 1-02-2739

PHILLIP WROBEL,					)	Appeal from the

								)	Circuit Court of

			Plaintiff-Appellant,	)	Cook County.

								)

v.								)	No. 02 L 50673  

  								)

ILLINOIS DEPARTMENT OF EMPLOYMENT		)	Honorable

SECURITY, et al.,					)	Thomas R. Chiola,Honorable

								)	Thomas R. Chiola,

			Defendants-Appellees.	)	Judge Presiding. 

	JUSTICE WOLFSON, delivered the opinion of the court:

	Plaintiff Philip Wrobel was a pressman for the Chicago

Tribune ("Tribune") for 17 years, until his firing on

September 27, 2001.  After his termination, plaintiff applied for

benefits under the Unemployment Insurance Act ("Act").  820 ILCS

405/100 et seq.  (West 2002) However, the Illinois Department of Employment Security ("IDES") denied his claim, agreeing with the

Tribune that plaintiff was terminated due to misconduct connected

with his work.  820 ILCS 405/602(A) (West 2002).  Plaintiff

continued to pursue benefits and requested a hearing before a

referee.  The referee affirmed IDES' denial of benefits. 

Plaintiff appealed the referee's decision to IDES' Board of

Review ("Board").  The Board adopted the factual findings and

legal reasoning of the referee and sustained her decision. 

Plaintiff then filed a complaint for administrative review of the Board's decision in the circuit court.  The circuit court affirmed the Board's decision and plaintiff then appealed to this

court.  Plaintiff contends that his actions were not misconduct

because the rule he violated was unreasonable, and because any

rule violation he committed was not done willfully and

deliberately.  We reverse.

	Plaintiff's hearing took place via a telephone conference

call on November 15, 2001.  Plaintiff, two of plaintiff's

supervisors, and a Tribune human resources representative

testified.  The following facts were elicited at plaintiff's

hearing.

	Plaintiff's shift started at 6 a.m.  In the event he was

going to be absent or late, he was supposed to call a supervisor

by 5 a.m.

	The Tribune had an attendance policy providing for various

levels of discipline based on the number of attendance

infractions.  The Tribune gave its employees written copies of

the policy on more than one occasion.  Under the policy,

attendance infractions would be measured in revolving 12-month

periods; so, an infraction would not be counted against an

employee after 12 months from that infraction.  Failing to call

in an absence or late arrival, or calling in late, counted as two

infractions.

	After one late call, late arrival, or absence, an employee

would receive counseling.  After two, an employee would receive a

verbal warning.  After three, the employee would receive a

written warning.  After a fourth, an employee would receive a

second written warning.  After a fifth, the employee would be

suspended for three days.  And finally, in the event of a sixth,

an employee would be terminated.  The Tribune retained the right

to accelerate the disciplinary schedule if a supervisor saw fit

to do so.

	Plaintiff had attendance issues.  On March 25, 1999, he had

an unexcused absence, followed by two late arrivals to work on

June 17 and September 23, 1999.  At that point he received a

written warning from the Tribune.  Plaintiff had another

unexcused absence on November 18, 1999, and then called in sick

after 5 a.m. on March 16, 2000, leading to his second written

warning.  Plaintiff received a three day suspension from the

Tribune after another unexcused absence on June 25, 2000.  As of

March 23, 2001, some of plaintiff's earlier infractions were over

a year old, and no longer counted against him.  So, when he

failed to call in before 5 a.m. that day, he only received

another written warning.  On April 28, 2001, plaintiff called his

supervisor after his shift was to have begun to inform him that

he had overslept.  On May 2, the Tribune informed plaintiff that another infraction could lead to the loss of his job.  When

plaintiff called in at 5:50 a.m. to tell his supervisor that he

would be late on September 27, 2001, the Tribune decided to fire

him.

	The referee focused the testimony around the September 27,

2001 incident.  Plaintiff testified that he called in late

because he overslept.  He explained that his electric clock-radio

failed to sound that morning as a result of a power outage

overnight.  His back up, wind-up clock also failed to go off

because he forgot to set it the night before.  Plaintiff admitted

that the electric clock's power could have been backed up with

batteries, but that he never put any in.  Plaintiff testified

that he explained why he had overslept to his supervisors, and

both supervisors acknowledged hearing about the malfunctioning

alarm clock.

	The only testimony regarding the circumstances of

plaintiff's other attendance infractions was about his late

arrival on April 28, 2001.  Plaintiff indicated that his electric

clock-radio also failed to sound on that morning, although he did

not know why.  One of the supervisors remembered plaintiff giving

that explanation at the time.

	The referee found plaintiff's explanation as to why he

called in late on September 27 credible.  However, the referee concluded that "the circumstances that caused his final

attendance violation were within his ability to control or

avoid."  Because he did not take steps to ensure that his alarm

clocks would go off, even in the event of a power failure, the

referee determined that plaintiff's discharge was for misconduct.

	The Board is the trier of fact, and its conclusions of fact

are considered as prima facie true and correct.  Greenlaw v. Department of Employment Security, 299 Ill. App. 3d 446, 448, 701 N.E.2d 175 (1998).  We will disturb the factual findings of the

board only when they are against the manifest weight of the

evidence.  City of Belvidere v. Illinois State Labor Relations Board, 181 Ill. 2d 191, 204, 692 N.E.2d 295 (1998).  However, we owe no deference to the Board's conclusions of law.  Katten Muchin and Zavis v. Department of Employment Security, 279 Ill. App. 3d 794, 799, 665 N.E.2d 503 (1996).  We will reverse the

Board's decisions when they are based on misinterpretations or

misapplications of the law.  Katten Muchin and Zavis, 279 Ill. App. 3d at 799.  Whether an employee's conduct amounted to

misconduct under the Act is a question of law, reviewed de novo.  Grigoleit Co. v. Department of Employment Security, 282 Ill. App. 3d 64, 71, 669 N.E.2d 105 (1996); see also London v. Department of Employment Security, 177 Ill. App. 3d 276, 279, 532 N.E.2d 294 (1988) (Board's determination that claimant fired for tardiness was a legal conclusion).  We will therefore review the Board's

determination that plaintiff's absences and tardiness amounted to

misconduct de novo.

	The benefits provided by the Unemployment Insurance Act are

meant to "alleviate the economic hardship occasioned by

involuntary unemployment."  Siler v. Department of Employment Security, 192 Ill. App. 3d 971, 974, 549 N.E.2d 760 (1989).  The Act should be liberally construed to favor the awarding of

benefits. Lachenmyer v. Didrickson, 263 Ill. App. 3d 382, 388, 636 N.E.2d 93 (1994). However, the Act was not meant to provide

benefits if an employee was discharged for his own misdeeds. 

Siler, 192 Ill. App. 3d at 974.

	To be guilty of misconduct that would preclude benefits, the

employee must deliberately and willfully violate a "reasonable

rule or policy of the employing unit, governing the individual's

behavior in performance of his work, provided such violation has

harmed the employing unit or other employees or has been repeated

by the individual despite a warning or other explicit instruction

from the employing unit."  820 ILCS 405/602(A) (West 2002).  Each

element must be proved to establish misconduct: the employee's

willful and deliberate violation of the rule, the reasonableness

of the rule, and the harm to the employer or commission of the

act after receiving a warning or instruction.  Caterpillar, Inc. v. Department of Employment Security, 313 Ill. App. 3d 645, 653, 730 N.E.2d 497 (2000).

	The Act's present definition of misconduct, enacted in 1988,

replaced a common law definition that considered "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" as

misconduct.  Jackson v. Board of Review, 105 Ill. 2d 501, 511- 512, 475 N.E.2d 879 (1985) (setting forth the old standard).  We

determined that the omission of negligence from the Act's new

definition was not an accident.  Siler, 192 Ill. App. 3d at 975 ("The legislature left out of the new definition of 'misconduct'

any mention of carelessness or negligence of any degree.  This

indicated that the legislature intended that persons discharged

for incapacity, inadvertence, negligence or inability to perform

assigned tasks should receive unemployment benefits.");

Washington v. Board of Review, 211 Ill. App. 3d 663, 669, 570 N.E.2d 566 (1991) (Jackson standard rejected in light of 1988 amendment).  We concluded that the present Act "limits misconduct

to those acts that are intentional."  Washington, 211 Ill. App. 3d at 669.

	Reviewing the record, and accepting the Board's findings of fact as true, we cannot conclude that plaintiff willfully and

deliberately violated the Tribune's rules.  In faulting plaintiff

for not taking better care to ensure that at least one of his

alarm clocks would go off so he could make it to work on time,

the Board addressed plaintiff's negligence, as opposed to any

intentional conduct.  For example, the Board noted that plaintiff

forgot to set his wind-up, back up clock.  One does not typically

forget to do something intentionally; forgetting is a matter of

carelessness.

	Carelessness and poor performance can certainly justify

termination.  Loveland Management Corp. v. Board of Review, 166 Ill. App. 3d 698, 702, 520 N.E.2d 1070 (1988) (failure to

complete assigned duties and to follow instructions justified

termination).  However, carelessness and poor performance alone

do not make an employee ineligible for the Act's benefits. 

Zuaznabar v. Board of Review, 257 Ill. App. 3d 354, 359, 628 N.E.2d 986 (1993) (to disqualify an employee from receiving

unemployment benefits "an employer must satisfy a higher burden

than merely proving that an employee should have been rightly

discharged."); Siler, 192 Ill. App. 3d at 975 ("Merely not 'following correct procedures' or disregarding 'the employer's

requirements as to safety and sanitation'" did not amount to

misconduct); Loveland, 166 Ill. App. 3d at 702 (poor performance alone was not misconduct).

	Willful and deliberate employee conduct is now required to

preclude unemployment benefits.  Willful conduct is a conscious

act made in violation of company rules, when the employee knows

it is against the rules.  Lachenmyer, 263 Ill. App. 3d at 389 ("Willful behavior stems from employee awareness of a company

rule that is disregarded by the employee.").  The facts in

Lachenmyer serve as a good example of what is meant by willful and deliberate conduct.  In that case, the employee willfully

violated his employer's explicit instruction to not make hostile

physical contact with his coworkers and broke employer rules when

he chose to throw a folder at his supervisor.

	On the other hand, cases such as London and Wright v. Department of Labor, 166 Ill. App. 3d 438, 441, 519 N.E.2d 1054 (1987) demonstrate what is not meant by willful and deliberate

conduct.  In London,177 Ill. App. 3d at 280, the plaintiff testified that she left home early enough to get to work, but

that she became snared in unusual traffic congestion and road

construction.  We held that her resulting tardiness that day

could not have been deliberate under the Act.  Likewise, in

Wright, 166 Ill. App. 3d at 441, when the plaintiff was late for work as a result of her car failing to start and a bus arriving

late, we concluded that she was not late deliberately.  We made our decision in these two cases knowing that there were things

the plaintiffs could have done to lessen the likelihood of their

tardiness, such as the Wright plaintiff better maintaining her car, or the London plaintiff leaving home earlier in anticipation of bad traffic. Our decisions in these two cases further

acknowledge that an employee must consciously choose to break the

employer's rules, or in this context, consciously choose to be

late, in order to be ineligible for unemployment benefits.

	Here, however, we have no conscious acts by plaintiff,

rather, we have an unconscious act: he overslept.  The Board did

not find, and there is nothing in the record to suggest, that

plaintiff chose to sleep beyond the time he would need to in

order to get up and make it to work, or call in, on time. 

Compare Washington, 211 Ill. App. 3d at 667 (employee falling asleep for 30 minutes in executive board meeting not misconduct

when nothing indicated that plaintiff "purposely 'took a nap'").

	Relying on Jackson, 105 Ill. 2d at 511-12, and Bochenek v. Department of Employment Security, 169 Ill. App. 3d 507, 525 N.E.2d 893 (1988), the Board asks us to infer deliberate and

willful conduct on the part of the plaintiff.  The Board claims

that plaintiff was not fired based on his last infraction alone,

and that plaintiff's infractions "recurred with sufficient

frequency to demonstrate a willful violation."  The Board's argument is problematic for two reasons.

	First, the Board's inconsistent position as compared with

that of its referee presents a problem as the Board stated it

adopted the factual findings and legal reasoning of the referee

in toto in its decision.  While it is true that misconduct can be determined by looking at a series of incidents, as opposed to one

"triggering" incident, Katten Muchin and Zavis, 279 Ill. App. 3d at 799, the referee focused exclusively on plaintiff's late call

in on September 27, 2001.  As mentioned before, her factual

findings surrounding that incident do not suggest a willful and

deliberate disregard of an employer rule by plaintiff.

	Second, the Board's argument falters because the Board

admits that some of plaintiff's other attendance infractions

could also have resulted from negligence.  For all the record

reveals, all of plaintiff's past infractions could have been the

result of negligence.  The record gives no indication as to the

circumstances of any of the other infractions by plaintiff, save

for his oversleeping on April 28, 2001, when his clock failed to

sound again.  As we have before, we will refuse to infer that an

employee willfully and deliberately violated an employer's

attendance policy based on the number of infractions alone.

London, 177 Ill. App. 3d at 281; Wright, 166 Ill. App. 3d at 441. The circumstances of each violation are legally significant and must be known to label a pattern of absence or tardiness as

misconduct.  Thus, in Wright, 166 Ill. App. 3d at 441, we held that when there was "no information about how tardy plaintiff was

or whether she had a reasonable excuse for her tardiness" we

could not determine that her pattern of tardiness amounted to

misconduct.

	Because we know so little about plaintiff's other tardiness

and absences, we cannot conclude that he willfully and

deliberately missed or was late for work.  Therefore, we cannot

say that he engaged in misconduct under the Act.  We reverse the

decision of the Board.

	Reversed.

	BURKE, and GARCIA, JJ., concur.