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SECOND DIVISION
November 18, 2003

No. 1-02-2739

JUSTICE WOLFSON, delivered the opinion of the court:

Plaintiff Philip Wrobel was a pressman for the ChicagoTribune ("Tribune") for 17 years, until his firing on

September 27, 2001. After his termination, plaintiff applied forbenefits under the Unemployment Insurance Act ("Act"). 820 ILCS405/100 et seq. (West 2002) However, the Illinois Department ofEmployment Security ("IDES") denied his claim, agreeing with theTribune that plaintiff was terminated due to misconduct connectedwith his work. 820 ILCS 405/602(A) (West 2002). Plaintiffcontinued to pursue benefits and requested a hearing before areferee. The referee affirmed IDES' denial of benefits. Plaintiff appealed the referee's decision to IDES' Board ofReview ("Board"). The Board adopted the factual findings andlegal 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 courtaffirmed the Board's decision and plaintiff then appealed to thiscourt. Plaintiff contends that his actions were not misconductbecause the rule he violated was unreasonable, and because anyrule violation he committed was not done willfully anddeliberately. We reverse.

Plaintiff's hearing took place via a telephone conference

call on November 15, 2001. Plaintiff, two of plaintiff'ssupervisors, and a Tribune human resources representativetestified. The following facts were elicited at plaintiff'shearing.

Plaintiff's shift started at 6 a.m. In the event he wasgoing to be absent or late, he was supposed to call a supervisorby 5 a.m.

The Tribune had an attendance policy providing for variouslevels of discipline based on the number of attendanceinfractions. The Tribune gave its employees written copies ofthe policy on more than one occasion. Under the policy,attendance infractions would be measured in revolving 12-monthperiods; so, an infraction would not be counted against anemployee after 12 months from that infraction. Failing to callin an absence or late arrival, or calling in late, counted as twoinfractions.

After one late call, late arrival, or absence, an employeewould receive counseling. After two, an employee would receive averbal warning. After three, the employee would receive awritten warning. After a fourth, an employee would receive asecond written warning. After a fifth, the employee would besuspended for three days. And finally, in the event of a sixth,an employee would be terminated. The Tribune retained the rightto accelerate the disciplinary schedule if a supervisor saw fitto do so.

Plaintiff had attendance issues. On March 25, 1999, he hadan unexcused absence, followed by two late arrivals to work onJune 17 and September 23, 1999. At that point he received awritten warning from the Tribune. Plaintiff had anotherunexcused absence on November 18, 1999, and then called in sickafter 5 a.m. on March 16, 2000, leading to his second writtenwarning. Plaintiff received a three day suspension from theTribune after another unexcused absence on June 25, 2000. As ofMarch 23, 2001, some of plaintiff's earlier infractions were overa year old, and no longer counted against him. So, when hefailed to call in before 5 a.m. that day, he only receivedanother written warning. On April 28, 2001, plaintiff called hissupervisor after his shift was to have begun to inform him thathe had overslept. On May 2, the Tribune informed plaintiff thatanother infraction could lead to the loss of his job. Whenplaintiff called in at 5:50 a.m. to tell his supervisor that hewould be late on September 27, 2001, the Tribune decided to firehim.

The referee focused the testimony around the September 27,2001 incident. Plaintiff testified that he called in latebecause he overslept. He explained that his electric clock-radiofailed to sound that morning as a result of a power outageovernight. His back up, wind-up clock also failed to go offbecause he forgot to set it the night before. Plaintiff admittedthat the electric clock's power could have been backed up withbatteries, but that he never put any in. Plaintiff testifiedthat he explained why he had overslept to his supervisors, andboth supervisors acknowledged hearing about the malfunctioningalarm clock.

The only testimony regarding the circumstances ofplaintiff's other attendance infractions was about his latearrival on April 28, 2001. Plaintiff indicated that his electricclock-radio also failed to sound on that morning, although he didnot know why. One of the supervisors remembered plaintiff givingthat explanation at the time.

The referee found plaintiff's explanation as to why hecalled in late on September 27 credible. However, the refereeconcluded that "the circumstances that caused his finalattendance violation were within his ability to control oravoid." Because he did not take steps to ensure that his alarmclocks would go off, even in the event of a power failure, thereferee determined that plaintiff's discharge was for misconduct. The Board is the trier of fact, and its conclusions of factare considered as prima facie true and correct. Greenlaw v.Department of Employment Security, 299 Ill. App. 3d 446, 448, 701N.E.2d 175 (1998). We will disturb the factual findings of theboard only when they are against the manifest weight of theevidence. City of Belvidere v. Illinois State Labor RelationsBoard, 181 Ill. 2d 191, 204, 692 N.E.2d 295 (1998). However, weowe no deference to the Board's conclusions of law. KattenMuchin and Zavis v. Department of Employment Security, 279 Ill.App. 3d 794, 799, 665 N.E.2d 503 (1996). We will reverse theBoard's decisions when they are based on misinterpretations ormisapplications of the law. Katten Muchin and Zavis, 279 Ill.App. 3d at 799. Whether an employee's conduct amounted tomisconduct 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. Departmentof Employment Security, 177 Ill. App. 3d 276, 279, 532 N.E.2d 294(1988) (Board's determination that claimant fired for tardinesswas a legal conclusion). We will therefore review the Board'sdetermination that plaintiff's absences and tardiness amounted tomisconduct de novo.

The benefits provided by the Unemployment Insurance Act aremeant to "alleviate the economic hardship occasioned byinvoluntary unemployment." Siler v. Department of EmploymentSecurity, 192 Ill. App. 3d 971, 974, 549 N.E.2d 760 (1989). TheAct should be liberally construed to favor the awarding ofbenefits. Lachenmyer v. Didrickson, 263 Ill. App. 3d 382, 388,636 N.E.2d 93 (1994). However, the Act was not meant to providebenefits 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, theemployee must deliberately and willfully violate a "reasonablerule or policy of the employing unit, governing the individual'sbehavior in performance of his work, provided such violation hasharmed the employing unit or other employees or has been repeatedby the individual despite a warning or other explicit instructionfrom the employing unit." 820 ILCS 405/602(A) (West 2002). Eachelement must be proved to establish misconduct: the employee'swillful and deliberate violation of the rule, the reasonablenessof the rule, and the harm to the employer or commission of theact 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 ornegligence of such degree or recurrence as to manifest equalculpability, wrongful intent or evil design, or to show anintentional and substantial disregard of the employer's interestsor of the employee's duties and obligations to his employer" asmisconduct. Jackson v. Board of Review, 105 Ill. 2d 501, 511-512, 475 N.E.2d 879 (1985) (setting forth the old standard). Wedetermined that the omission of negligence from the Act's newdefinition 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. Thisindicated that the legislature intended that persons dischargedfor incapacity, inadvertence, negligence or inability to performassigned tasks should receive unemployment benefits.");Washington v. Board of Review, 211 Ill. App. 3d 663, 669, 570N.E.2d 566 (1991) (Jackson standard rejected in light of 1988amendment). We concluded that the present Act "limits misconductto those acts that are intentional." Washington, 211 Ill. App.3d at 669.

Reviewing the record, and accepting the Board's findings offact as true, we cannot conclude that plaintiff willfully anddeliberately violated the Tribune's rules. In faulting plaintifffor not taking better care to ensure that at least one of hisalarm clocks would go off so he could make it to work on time,the Board addressed plaintiff's negligence, as opposed to anyintentional conduct. For example, the Board noted that plaintiffforgot to set his wind-up, back up clock. One does not typicallyforget to do something intentionally; forgetting is a matter ofcarelessness.

Carelessness and poor performance can certainly justifytermination. Loveland Management Corp. v. Board of Review, 166Ill. App. 3d 698, 702, 520 N.E.2d 1070 (1988) (failure tocomplete assigned duties and to follow instructions justifiedtermination). However, carelessness and poor performance alonedo not make an employee ineligible for the Act's benefits. Zuaznabar v. Board of Review, 257 Ill. App. 3d 354, 359, 628N.E.2d 986 (1993) (to disqualify an employee from receivingunemployment benefits "an employer must satisfy a higher burdenthan merely proving that an employee should have been rightlydischarged."); Siler, 192 Ill. App. 3d at 975 ("Merely not'following correct procedures' or disregarding 'the employer'srequirements as to safety and sanitation'" did not amount tomisconduct); Loveland, 166 Ill. App. 3d at 702 (poor performancealone was not misconduct).

Willful and deliberate employee conduct is now required topreclude unemployment benefits. Willful conduct is a consciousact made in violation of company rules, when the employee knowsit is against the rules. Lachenmyer, 263 Ill. App. 3d at 389("Willful behavior stems from employee awareness of a companyrule that is disregarded by the employee."). The facts inLachenmyer serve as a good example of what is meant by willfuland deliberate conduct. In that case, the employee willfullyviolated his employer's explicit instruction to not make hostilephysical contact with his coworkers and broke employer rules whenhe 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 deliberateconduct. In London,177 Ill. App. 3d at 280, the plaintifftestified that she left home early enough to get to work, butthat she became snared in unusual traffic congestion and roadconstruction. We held that her resulting tardiness that daycould not have been deliberate under the Act. Likewise, inWright, 166 Ill. App. 3d at 441, when the plaintiff was late forwork as a result of her car failing to start and a bus arrivinglate, we concluded that she was not late deliberately. We madeour decision in these two cases knowing that there were thingsthe plaintiffs could have done to lessen the likelihood of theirtardiness, such as the Wright plaintiff better maintaining hercar, or the London plaintiff leaving home earlier in anticipationof bad traffic. Our decisions in these two cases furtheracknowledge that an employee must consciously choose to break theemployer's rules, or in this context, consciously choose to belate, 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 didnot find, and there is nothing in the record to suggest, thatplaintiff chose to sleep beyond the time he would need to inorder to get up and make it to work, or call in, on time. Compare Washington, 211 Ill. App. 3d at 667 (employee fallingasleep for 30 minutes in executive board meeting not misconductwhen 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, 525N.E.2d 893 (1988), the Board asks us to infer deliberate andwillful conduct on the part of the plaintiff. The Board claimsthat plaintiff was not fired based on his last infraction alone,and that plaintiff's infractions "recurred with sufficientfrequency to demonstrate a willful violation." The Board'sargument is problematic for two reasons.

First, the Board's inconsistent position as compared withthat of its referee presents a problem as the Board stated itadopted the factual findings and legal reasoning of the refereein toto in its decision. While it is true that misconduct can bedetermined by looking at a series of incidents, as opposed to one"triggering" incident, Katten Muchin and Zavis, 279 Ill. App. 3dat 799, the referee focused exclusively on plaintiff's late callin on September 27, 2001. As mentioned before, her factualfindings surrounding that incident do not suggest a willful anddeliberate disregard of an employer rule by plaintiff.

Second, the Board's argument falters because the Boardadmits that some of plaintiff's other attendance infractionscould also have resulted from negligence. For all the recordreveals, all of plaintiff's past infractions could have been theresult of negligence. The record gives no indication as to thecircumstances of any of the other infractions by plaintiff, savefor his oversleeping on April 28, 2001, when his clock failed tosound again. As we have before, we will refuse to infer that anemployee willfully and deliberately violated an employer'sattendance 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 andmust be known to label a pattern of absence or tardiness asmisconduct. Thus, in Wright, 166 Ill. App. 3d at 441, we heldthat when there was "no information about how tardy plaintiff wasor whether she had a reasonable excuse for her tardiness" wecould not determine that her pattern of tardiness amounted tomisconduct.

Because we know so little about plaintiff's other tardinessand absences, we cannot conclude that he willfully anddeliberately missed or was late for work. Therefore, we cannotsay that he engaged in misconduct under the Act. We reverse thedecision of the Board.

Reversed.

BURKE, and GARCIA, JJ., concur.