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

RICHARD K STENSRUD, Employee

AMERICAN EXCELSIOR CO, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02202435RL


An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development 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 makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked for the employer, a manufacturer of erosion control products, for about a year as a boiler tender. His last day of work was
September 22, 2002, and he was discharged on September 24, 2002 (week 39).

The employer has a "no-fault" attendance policy, under which workers are given one point for tardiness of over three minutes or for leaving early, and two points for an absence. Workers receive a verbal warning at six points, a written warning at eight points, a second written warning at ten points, and are discharged at twelve points.

On June 21, 2002, the employee received a verbal warning for having been tardy on March 22, April 5, April 25, May 5, June 1, and June 21. The employee was again tardy on July 21 and July 27. He was absent due to illness on July 28, and tardy on August 11. The employee was issued both a first and second written warning on August 15, at which point he was advised that he was at eleven points and would be discharged if tardy again within 45 days. The employee was tardy on September 22 and was discharged two days later. The employee's final tardiness occurred when his route to work was blocked off because a house was being moved. He indicated that his previous tardies related to the fact that he was exhausted from caring for his fiancée, who suffers from a serious illness, and from working a second job.

The issue to be decided is whether the employee's discharge was due to misconduct connected with his employment.

In Boynton Cab v. Neubeck, 237 Wis. 249, 296 N.W. 636 (1941), the leading case with respect to the meaning of the term "misconduct" as applied to unemployment compensation in the United States, the court said, in part, as follows:

". . . the intended meaning of the term 'misconduct' . . . is limited to conduct evincing such wilful or wanton disregard of an employer's interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employe, or in 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 employe's duties and obligations to his employer. On the other hand mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good-faith errors in judgment or discretion are not to be deemed 'misconduct' within the meaning of the statute."

The employee was discharged for having accumulated too many points under the employer's no-fault attendance system. While the commission believes that the employee could have made a better effort to report to work on time, the employee's personal circumstances were extremely difficult, and the commission is not persuaded that his tardiness displayed an intentional disregard for the employer's interests. Moreover, the employee received his second and third warnings on the same day, after which he went almost six weeks without another attendance violation, and then was discharged because of a single tardy arrival that was due to circumstances beyond his control. Under all the facts and circumstances, the commission does not believe that the employee's attendance record evinced such a wilful and deliberate disregard for the employer's interests as to rise to the level of misconduct.

The commission, therefore, finds that in week 39 of 2002, the employee was discharged and not for misconduct connected with his employment, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 39 of 2002, provided he is otherwise qualified. There is no overpayment as a result of this decision.

Dated and mailed May 28, 2003
stensri . urr : 164 : 1 MC 605.01

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

 

NOTE: The commission conferred with the administrative law judge regarding her impressions of witness credibility and demeanor. The administrative law judge indicated that she was unpersuaded by the employee's explanation for his final episode of tardiness, given that the police report he presented at the hearing showed that the police escorted the house at 6:30 a.m., half an hour after the employee was to have reported for work. The employee's testimony suggests, however, that although the police escort did not arrive at the scene to open the road until 6:30 a.m., the process of moving the house began earlier. The commission finds the employee's excuse to be credible, and it does not believe that his overall attendance record was so egregious as to evince misconduct.

cc: American Excelsior Co. (Rice Lake, Wisconsin)


[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]


uploaded 2003/06/06