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


DARYL G CHILDRESS, Employe

MTI INTL INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98600535MW


On January 10, 1998, the Department of Workforce Development issued an initial determination which held that the employe had been discharged for misconduct connected with his employment. The employe timely filed a request for hearing, and hearing was held on February 10, 1998 in Milwaukee, Wisconsin before a department administrative law judge. On February 13, 1998 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 10 years as a print and fire operator for the employer, a circuit boards manufacturer. The employer discharged him on December 17, 1997 (week 51), for attendance failures the employe had accumulated in the previous 12 months. The commission concludes that these failures do not constitute misconduct for unemployment insurance purposes, and so reverses the appeal tribunal decision.

The employe was absent on January 27, 1997, due to illness. He left work early on March 21, 1997, with the employer's knowledge, because his wife had had to go to the hospital. On June 2, the employe left work early, after informing the employer, because he had to go to school because his son had been in an altercation with another child. On June 10, 1997, the employe was absent due to car trouble.

At this point, the employe had been absent twice in just under five months, with valid reasons, and had to leave work early on two occasions, again for valid reasons. At this point, therefore, he was not at fault for any of his attendance failures. He was at fault for his next attendance failure; he was absent on June 11, 1997 without notice to the employer. He could not recall at hearing the reason for the absence; even if it was for a valid reason, though, he should have given notice to the employer.
The employe received a written warning and 3-day suspension on July 23, 1997, following an absence due to illness on July 14. The employe testified that he has high blood pressure, that on the date in question he was light headed. There was a several days' delay in the employer's imposition of the suspension. Production was heavy at the time, and supervisors in the employe's work area asked that the suspension be delayed.

The employe's next attendance failure was on November 10. He telephoned the employer and indicated that he had family problems and would not be in. The incident precipitating the discharge was the employe's December 16, 1997 absence. The employe had been in a "fender bender" that morning. Someone bumped his car, and he and the other driver exchanged words. The other driver pushed the employe, and the matter then escalated to a few punches thrown. The employe and the other driver were both charged with assault, and at least the employe was incarcerated the remainder of December 16 for the assault. The employe had his wife contact the employer to inform it the employe would not be in that day.

Misconduct for unemployment insurance purposes is the intentional and substantial disregard by an employe of standards an employer reasonably may expect of its employes. A large number of attendance failures for improper reasons meets this standard. In this case, though, the employe had only six absences in his last year of employment and two instances of leaving work early. The two instances of leaving work early are not culpable conduct by the employe, given that one was because of his son and the other because of his wife's hospitalization. This leaves the six absences, two of which were due to illness and one of which was due to car trouble. Again, absences for such reasons are not an intentional disregard of an employer's interests. The only marks against the employe are one June absence without notice, a November absence due to family problems, and the absence precipitating the discharge, due to the employe's arrest following a traffic accident. Another driver ran into the employe; the employe and other driver began arguing, and punches were thrown after the other driver began pushing the employe. The employe of course is ultimately responsible for his actions which led to his arrest; the circumstances leading to that arrest, though, mitigate the fault attributable to the employe. There also is no indication, finally, that the employe's November absence was not for a valid reason. On the whole, therefore, the attendance failures for which the employe is at fault do not rise to the definition of misconduct for unemployment insurance purposes.

The commission therefore finds that, in week 51 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 is reversed. Accordingly, the employe is eligible for benefits as of week 51 of 1997, if he is otherwise qualified.

Dated and mailed: May 15, 1998
childda.urr : 105 : 1 MC 605.09  MC 688

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/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 matter. Such conferral is required where the commission is considering reversal of an appeal tribunal decision because of a differing credibility assessment from that made by the administrative law judge. In this case, though, the commission has adopted the factual findings made by the administrative law judge. The commission simply concludes that the employe's attendance record does not rise to the level of misconduct for unemployment insurance purposes.


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