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


WILLIAM E ZUMACH, Employe

REYNOLDS ALUMINUM DEUTSCHLAND INC, Employer

UNEMPLOYMENT COMPENSATION DECISION
Hearing No. 97002173JV


On April 11, 1997, the Department of Workforce Development issued an initial determination which held that the employe's discharge was not for misconduct connected with his employment. The employer timely filed a request for hearing on the adverse determination, and hearing was held on May 13, 1997 in Janesville, Wisconsin before a department administrative law judge. On May 15, 1997, the administrative law judge issued an appeal tribunal decision affirming the initial determination of no misconduct. The employer timely filed a petition for review of the adverse appeal tribunal decision, and the matter now is ready for disposition.

Based upon the applicable law and the records and other evidence in the case, and after consultation with the administrative law judge, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked approximately ten months as a castings operator for the employer, an automobile wheel manufacturer. The employer discharged the employe on March 24, 1997 (week 13) for attendance failures, and the issue is whether the discharge was for misconduct for unemployment compensation purposes. The commission concludes that it was, and so reverses the appeal tribunal decision.

The employer has a "rolling" attendance policy, pursuant to which absences and instances of tardiness in an employe's most recent year of employment count against the employe. After four absences, an employe receives a verbal warning. After six absences, an employe receives a written warning. Seven absences results in a second written warning, with discharge upon eight absences in a year. The employer does not count against employes absences covered by doctor's excuse. Finally, three absences in a year, if without notice to the employer, by themselves constitutes grounds for discharge.

The employe was absent on May 31, August 23, September 6, and September 7, and was late to work on June 7, 1996. For these attendance failures, the employe received a verbal warning on September 22, 1996.

The employe again was absent on September 13, 1996. He also was absent, this time without notice, on October 9. The employe was absent on October 10, but with notice. When the employe was again absent without notice on October 16, he was issued a second warning for his attendance failures.

The employe was absent on December 11 and December 30, 1996, and on January 1, 1997. The employe was tardy on January 5 and February 19. When the employe was absent without notice on March 23, the employer discharged the employe for having accumulated three absences without notice within a year's time.

Misconduct for unemployment compensation purposes is the substantial and intentional disregard by an employe of standards an employer reasonably may expect of its employes. In this case, the employe's attendance failures meet that standard. Specifically, there are few legitimate excuses for absences without notice, and the employe provided no reasonable justification for his failure to have given the employer notice of his October 9, October 16, and March 23 absences. Three absences without notice is a general standard for misconduct in the unemployment compensation context. It also is a general standard for cause for discharge in the employment relations context. Finally, the employer's work rules specifically indicate that three absences without notice (in a year) will result in discharge. The commission therefore finds that, in week 13 of 1997, the employe was discharged for misconduct connected with his employment, within the meaning of Wis. Stat. § 108.04 (5).

The commission also finds that the employe was paid benefits in the amount of $229.00 per week for each of weeks 14 through 34 of 1997, and $97.00 for week 35 of 1997, totaling $4,906.00, for which he was ineligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03 (1). The commission also finds, finally, that waiver of recovery of benefits paid for weeks 19 - 35, $3,761.00, is required under Wis. Stat. § 108.22 (8)(c). That portion of the overpayment did not result from employe fault as provided in Wis. Stat. § 108.04 (13)(f), but rather was the result of department error. Specifically, in finding the employe's discharge not to have been for misconduct, the administrative law judge reasoned that the employe had only been absent without notice on two occasions. In so doing, the administrative law judge erroneously conflated the information on page 7 and 8 of exhibit 1. The administrative law judge considered the employe's notice as reflected on page 8 to negate the employer's assertion that the employe had been absent without notice on October 9, 1996. The notice documented on page 8 of exhibit 1, however, concerned the following shift. For the previous shift, on October 9, 1996, the employe in fact was absent without notice. The commission does not believe the issuance of the initial determination was department error, on the other hand, because at that time the department did not have all the evidence later available to the administrative law judge. For this reason, there is no basis to waive recovery of benefits paid to the employe before the issuance of the appeal tribunal decision.

DECISION

The appeal tribunal decision is reversed. Accordingly, the employe is ineligible for benefits beginning in week 13 of 1997, and until seven weeks have elapsed since the end of the week of discharge and he has earned wages in covered employment performed after the week of discharge equaling at least 14 times his weekly benefit rate which would have been paid had the discharge not occurred. The employe must repay $1,145.00 to the Unemployment Reverse Fund. Recovery of the remaining amount, $3,761.00, is waived as having been paid due to department error.

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 November 12, 1997
zumacwi.urr : 105 : 1  BR 335.02   MC 605.05

/s/ Pamela I. Anderson, Chairman

/s/ David B. Falstad, Commissioner

NOTE: The commission conferred with the administrative law judge, who had indicated that credibility was a factor in his decision-making. The commission's reversal of the appeal tribunal decision was not based upon a differing credibility assessment from that of the administrative law judge, but rather was due to the fact that the employe did have three absences without notice in less than six months' time.

cc: REYNOLDS WHEELS INTL

SUSAN L MIRISE
HEARING COORDINATOR
C/O GATES MC DONALD


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