KENT G BARBER, Employee

WD FLOORING, Employer

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:

The employee worked about seven months for the employer, a hardwood flooring manufacturer, most recently as a grader. His last day of work was January 10, 2003 (week 2).

The initial issue to be decided is whether the employee quit his employment or was discharged.

The employer has a work rule that requires a call before a shift starts to report an absence. It has a second rule that states that if a worker fails to call in to report an absence for two consecutive days the worker will be considered to have quit. The employee was aware of those rules.

The employee did not report to work for his 6 a.m. to 3:30 p.m. shift on January 13 or 14, 2003 (week 3), because he was in jail from January 12, 2003, until after noon on January 14, 2003. He also did not call his employer prior to his work shifts to report his absences on those days as required. When he called in shortly before 3 p.m. on the second day to report his reason for being absent, he was told that his employment had been terminated pursuant to the two-day resignation rule.

The employee asserted that he was discharged. The commission agrees. The employee was put in jail because of alleged nonpayment of fines. The employee had been making payments on the fines and did not know a warrant had been issued.

The employee was taken to the Florence County Jail on Sunday, January 11, 2003. He did not call the employer because it was Sunday and there was nobody at the employer. The employee would have had to make a collect call because it would have been long distance to call the employer and there would not have been anybody at the employer to accept the charges. The employee did not have a phone card. The employee was transferred to the Taylor county jail on Monday, January 12. He used his one phone call to call his sister. He asked her to bring $750 to pay his bail. The employee believed he would be released on Monday, January 12. He was released on Tuesday, January 13, and contacted the employer shortly after his release. The vice president told him the employer considered him to have voluntarily resigned.

In this case, the employee was only absent from work for two days. He used the phone call allotted to him by the Taylor County Jail to call his sister and make arrangements for his release. He contacted the employer as soon as practicable after his release. The employee's actions simply do not demonstrate an intention to quit his job. As such, the commission concludes that the employee did not quit, but was discharged.

The next issue to be resolved is whether the employee was discharged for misconduct connected with his work.

In Boynton Cab Co. v. Neubeck & Ind. Comm., 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 employee, 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 employee'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' with in the meaning of the statute."

In this case, the employee was discharged for being absent for two days and giving no notice on the first day and inadequate notice on the second day. The employer did not indicate that the employee had prior attendance problems that were considered in the decision to discharge the employee. The employee's two-day absence did not demonstrate such a wilful and substantial disregard of the employer's interests as to constitute misconduct connected with his work.

The commission therefore finds that in week 3 of 2003, the employee was discharged but that the discharge was not for misconduct connected with the employee's work, within the meaning of Wis. Stat. § 108.04(5).

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits as of week 3 of 2003, if otherwise qualified.

Dated and mailed August 15, 2003
barbeke . urr : 145 : 1    MC 605.091

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

The commission did not discuss witness credibility and demeanor with the ALJ who held the hearing. The commission did not reverse the ALJ's decision based on a differing impression of witness credibility and demeanor but rather, because it reached a different legal conclusion when applying the law to the facts found by the ALJ.

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uploaded 2003/08/25