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


ALEXANDER F GODLEWSKI JR, Employe

CITY OF MILWAUKEE, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 97605330MW


On August 7, 1997, the Department of Workforce Development issued an initial determination which held that the employe was discharged for misconduct connected with his employment. The employe timely requested a hearing on the adverse initial determination, and hearing was held on August 25 and September 2, 1997 in Milwaukee, Wisconsin before a department administrative law judge. On September 4, 1997, the administrative law judge issued an appeal tribunal decision affirming the initial determination. The employe timely filed a petition for review, and the matter now is ready for disposition.

Based upon the applicable law and the records and other evidence in the case, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked approximately 24 years for the employer, a municipality. His last assignment was urban forestry crew leader, and his last day of work was on or about July 11, 1997 (week 28). The employer discharged him for various attendance failures, and the issue is whether that discharge was for misconduct for unemployment insurance purposes. The commission concludes that it was not, and so reverses the appeal tribunal decision.

The employe had numerous absences for illnesses which he properly reported, and which were not a factor in the employer's discharge of him. The employe also missed substantial amounts of work due to a work-related injury and, of course, such absences are not properly held against an employe. This leaves the attendance failures for which the employe was at fault. According to the employer's attendance records, he had no such attendance failures in 1995. In 1996, he had only four. He was just under four hours late in reporting his absence on July 30, for which he received a one-day suspension. He was just over two hours late to work on August 1. He was 12 minutes late to work on August 29, for which he received a three-day suspension. On September 12 and 13, the employe was 37 and 50 minutes late, respectively, in reporting his absences on those dates, for which he received a ten-day suspension (reduced to three days).

In 1997, the employe received a one-day suspension on April 4, for having been late reporting to a snow plowing assignment. The employe then received a 15-day suspension, for having been late reporting his absence on May 13. Thus, up to the attendance failure precipitating the discharge, the employe had had no culpable failure in 1995, four or five in 1996, and two in 1997.

The incident precipitating the discharge was the employe's having called approximately 35 minutes late on July 1, to report that he had overslept. The employe wanted to report to work that day nonetheless, but was told not to do so. The employe testified that, although he believed his late reporting was due simply to oversleeping, he subsequently discovered that it likely had been caused by medication the employe was taking for an abscessed tooth the employe's dentist had begun working on on June 25. The employe was prescribed Vicodin for his pain, and he was taking that at night. In addition, the employe was undergoing significant stress due to a pending divorce action and his preparation of documents connected with that action. Finally, his spouse's stepson was in a gang and gang activity was occurring at his spouse's home with his three-year-old present.

Misconduct for unemployment insurance purposes is the intentional and substantial disregard by an employe of standards an employer reasonably may expect of its employes. The employe's attendance failures, when looked at in their totality, fall short of this standard. That an employer is entitled, under whatever contract exists between itself and its employes, to discipline an employe as the employer did in this case, still does not necessarily equate the failures in question with misconduct under Wis. Stat. § 108.04 (5). The commission therefore finds that, in week 28 of 1997, the employe was discharged but not for misconduct connected with his work for the employer, within the meaning of Wis. Stat. § 108.04 (5).

DECISION

The appeal tribunal decision judge is reversed. Accordingly, the employe is eligible for benefits if he is otherwise qualified.

Dated and mailed: February 20, 1998
godleal.urr : 105 : 7 MC 605 MC 688

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

NOTE: The commission did not confer with the administrative law judge before determining to reverse the appeal tribunal decision in this case. Such conferral is required where the commission is considering reversal of an appeal tribunal decision due to a differing credibility assessment from that of the administrative law judge. The commission has accepted the administrative law judge's factual findings; the commission simply has concluded that the undisputed attendance failures do not rise to the level of misconduct for unemployment insurance purposes.

 

PAMELA I. ANDERSON, COMMISSIONER (Dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. The employer did not hold his numerous absences for illness or work injury against him but the employer is entitled to hold him responsible for tardiness and failure to timely report absences. The employe should have had plenty warning that the employer considered his attendance to be important because he received progressive discipline.

The employe received a one-day suspension for reporting to work four hours late on July 30, 1996 (he had been absent without leave two days earlier and was late calling in on July 15). He was over 2 hours late to work August 1, 1996. He was 12 minutes late on August 29 and received a 3-day suspension. On September 12, 1996 he called in at 8:07 a.m. when he was to report at 7:00 a.m. On September 13, 1996 he called in at 8:20 a.m. when he was to report at 7:00 a.m. (The majority says he was 37 and 50 minutes late with his call-ins but that is only because the employer allowed him a half hour grace period.) He received a ten-day suspension for these two late call-ins but it was reduced to 3 days if he used the employe assistance program. On May 13, 1997 he was late in reporting his absence and received a 15-day suspension.

The final incident was when he called in at 8:05 a.m. when his start time was 7:00 a.m. He said he overslept. The employe was an urban forestry crew leader. The employer even gave him assignments closer to home so he could report to work on a more timely basis.

The employe says his final late was caused by taking Vicodin for problems with his teeth. The employe had not had problems oversleeping and was taking Vicodin prior to the last day. The employe did admit that he had also stayed up until 3:30 a.m. preparing for his divorce case which was coming up on July 8. While it is understandable that he could be late from staying up until 3:30 a.m., I do not believe he can be excused after the amount of warning he received. He was the crew leader and the employer depended upon him to be there or at least let them know in a timely fashion. The employe did not let the employer know time and time again. I agree with the administrative law judge that his conduct amounts to misconduct connected to his employment and I would affirm the administrative law judge's decision.

Pamela I. Anderson, Commissioner

cc: CITY OF MILWAUKEE-FORESTRY
SOUTH DISTRICT AREA


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