DAVID PIERSON, Employee

V & L TOOL INC, 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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

The decision of the administrative law judge is affirmed. Accordingly, the employee is eligible for benefits beginning in week 18 of 2005, if otherwise qualified.

Dated and mailed November 1, 2005
piersda . usd : 150 : 8   MC 605.09

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

The employer petitioned the appeal tribunal decision that allowed unemployment insurance benefits to the employee for violation of the employer's attendance policy. The relevant policy provided:

An employee will only be allowed to accumulate ten (10) attendance points once in a twelve-month period. Once the second accumulation of ten (10) attendance points takes place within twelve months of the first accumulation of ten (10) attendance points, the employee will be automatically discharged.

From June 23, 2003 to June 16, 2004, the employee accumulated 10.5 attendance points. At that point and pursuant to the employer's policies, the employee waived a three-day suspension and was required to work 40 days without an absence to avoid a discharge. The employee satisfied the requirement and his points were reduced to 8.5. Thereafter, he did not accumulate another ten attendance points but merely reached ten points over the next ten-month period. After reaching the ten points, he was discharged. The commission will not address whether the employer's application of its written policy follows the plain language of the policy because even if the application is consistent with the language, not every work rule violation warranting a separation of employment is an intentional and substantial disregard of an employer's interest constituting misconduct. See Milwaukee Transformer Co. v. Industrial Comm., 22 Wis. 2d 502, 126 N.W.2d 6 (1964).

In determining whether an employee's absenteeism constitutes misconduct connected with the employment, the courts have held that an employee's intent and attitude are the most important factors. Accordingly, misconduct will not be found if a worker's absences are for valid reasons and are promptly reported to the employer. P.P.G. Industries v. DILHR & Reynolds, Dane Co. Cir. Ct., Case No. 161-399, February 7, 1979. In the last ten months of the employee's employment, he had three separate 40-day periods without an absence and was absent and late once due to automotive difficulties, was absent without notice and was absent two other days, including the final day, due to illness and with notice to the employer. Thus, in the last eight months of the employee's work for the employer, he accumulated 1.5 new attendance points. While the commission certainly does not condone his one absence without notice during this period, his other absences were for valid reasons and with proper notice.

Under these circumstances and in light of the employee's 27 years of service for the employer, the commission finds that the employee's absenteeism did not evince a willful or intentional disregard of the employer's interests or of the standards of conduct that it had a right to expect. The commission therefore adopts the appeal tribunal decision as its own.

cc: Attorney Robert K. Sholl

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uploaded 2005/11/07