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

KIM J ROSENOGLE, Employee

WALKER STAINLESS EQUIPMENT CO INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03008303BO


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 stainless steel manufacturer, for twenty years as a grinder/polisher. His last day of work was November 19, 2003. He was discharged on November 20, 2003 (week 47).

In December of 2002 the employer initiated a complicated no-fault attendance policy under which varying numbers of points are assessed for different types of attendance violations, and employees are discharged after reaching a total of nineteen points during a rolling 365-day period. Under the policy three points are assessed for every absence, including those due to illness, although multiple days of absence due to illness are viewed as a single three-point occurrence where a medical excuse is provided. Attendance points drop off after a year has elapsed. The employer also instituted a new policy about personal time, under which employees have eighteen hours of personal time per year, but are required to provide at least twenty-three hours written notice before using personal time unless shorter notice is unavoidable. The employer mailed copies of the new policies to all employees at their homes and also distributed copies at work.

The employee served a suspension in March of 2003 based upon the culmination of attendance violations from the previous year. On April 24 the employee left work early and was assessed one point. The employee could not recall the reason he left work early. The employee missed work due to illness on May 5 and 6, for which he received a total of three points, and again on June 16, for which he was assessed another three points. He left work early on July 1, 2, 7, and 28, and was absent on August 5. The employee could not recall the reasons for these attendance violations, although the record indicates he provided a doctor's excuse for the early departures on July 1 and 2, and these were therefore treated as a single occurrence. On August 11, the employee reached eleven points and was given a written warning.

On August 18, 2003, the employee took a personal day without prior notice. He could not recall the reason for that absence. The employee reached a total of fifteen points on August 25, and was issued a three-day suspension. On September 29 the employee took a personal day without advance notice, thereby accruing three points. On November 19, he left work early because his daughter was sick. The following day the employee brought a medical slip to work. However, he was discharged at this time because he had reached nineteen points.

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 employer discharged the employee for accruing the maximum number of points allowable under its no-fault attendance policy. However, the commission has consistently held that mere proof of absence, however frequent, does not create a presumption of misconduct. That is particularly true where the employer has a "no fault" attendance policy by which all tardiness and absence is treated the same, regardless of the reason. Godbolt v. Hondo, Inc. (LIRC, June 11, 1999). Misconduct will not be found if the absences are for valid reasons and are promptly reported to the employer. Simmons v Klemm Tank Lines (LIRC, June 30, 2003).

In this case, while some of the employee's absences or early departures were not for valid reasons, the employee was assessed points in several instances where he missed work due to personal illness or the illness of his daughter. The final incident which culminated in the employee's discharge occurred because the employee had to leave work early to take his sick daughter to the clinic, and provided a medical slip to the employer. While the evidence demonstrated that the employee's attendance record was unsatisfactory to the employer -- and the commission believes he could have made a better effort to improve his attendance -- the commission nonetheless concludes that the employee's attendance record as a whole did not rise to the level of misconduct as defined in the Boynton Cab case cited above, and that his discharge for having reached the maximum allowable point total under the employer's no-fault attendance policy should not disqualify him from receiving unemployment benefits.

The commission, therefore, finds that in week 47 of 2003, 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 47 of 2003, provided he is otherwise qualified. There is no overpayment as a result of this decision.

Dated and mailed July 7, 2004
rosenki . urr : 164 : 9   MC 605.09

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


NOTE: The commission conferred with the administrative law judge to obtain his impressions of the credibility and demeanor of the witnesses. The administrative law judge indicated that he found the employee not to be credible in his testimony that he could not recall the reasons for his three personal absences or in his assertions that he had not received and was not familiar with the employer's new policies. The commission does not disagree with the administrative law judge's assessment that the employee was not credible in this regard. However, even concluding that the employee was aware of the employer's policies and that his personal absences were not for valid reasons, for the reasons set forth in the body of the decision the commission does not believe the employee's discharge was for misconduct.


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uploaded 2004/07/12