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

TERRELL W ARMSTRONG, Employee

BENTLEY & SON INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 95600141MW


An administrative law judge (ALJ) for the Unemployment Compensation Division of the Department of Industry, Labor and Human Relations 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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employe is eligible for benefits as of week 49 of 1994, if otherwise qualified.

Dated and mailed May 10, 1995
armstte . usd : 105 : 1  MC 605.05

Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner

MEMORANDUM OPINION

The employer asserts in its petition for review that the employe was discharged both for attendance failures and for failing to follow the employer's policy for reporting absences. The employer's representative at hearing, however, its general supervisor, testified that the attendance failures listed on Exhibit 1 were not used against the employe for purposes of the discharge, and that the employe was discharged for failing to follow the employer's call-in policy. The general supervisor also testified that the employer was not questioning the legitimacy of the employe's absences, but rather his method of reporting them. Even if the employe's absences themselves were at issue, though, the record indicates that the employe had legitimate reasons for most, if not all, of the absences. Of the absences listed on Exhibit 1, four were due to illness and two were due to transportation failure. There is no indication that the employe in fact was not ill on the days he said he was. In addition, his transportation failure was unexpected (his car had been broken into on Thanksgiving night and was virtually inoperable).

With regard to the proper call-in procedure, it is conceded that the employe did not always attempt to contact the employer's general superintendent to report an absence. In every case, though, the employe either telephoned the job site or attempted to contact the employer at the employer's offices. Given these attempts by the employe, the commission cannot conclude that the failures for which the employe was discharged were the intentional and substantial disregard of an employer's interests which is misconduct for unemployment compensation purposes.

 


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