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

OCTAVIA L BURKS, Employee

JEWISH HOME & CARE CENTER INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04603648MW


PROCEDURAL HISTORY

On May 13, 2004, an administrative law judge (ALJ) for the Department issued a decision denying unemployment benefits to the employee; it found that her discharge was for misconduct connected with her employment and included an overpayment of $1,266.00, which the employee was directed to repay. The decision had a June 3, 2004 appeal deadline.

On June 2, 2004, the Milwaukee Hearing Office received and date stamped the employee's petition to the above appeal tribunal decision. However, the petition was not processed or forwarded to the Labor and Industry Review Commission for review.

On June 10, 2004, an amended decision was issued from the Milwaukee Hearing Office to correct the overpayment language on the original May 13, 2004 decision. In particular, a portion of the overpayment was treated as payment allocated to the employee's forfeiture balance and, given the misconduct decision and denial of benefits, the decision should have indicated that the amount allocated needed to be restored to the balance.

No further action was taken until August 2, 2006, when another ALJ at the Milwaukee Hearing Office issued a set aside decision for this hearing number. The set aside provided, as follows:

THE APPEAL TRIBUNAL DECISION DATED AND MAILED JUNE 10, 2006 AMENDING THE MAY 13, 2006 DECISION WAS ISSUED IN ERROR AND IS HEREBY SET ASIDE.

On August 30, 2006, the employee's petition was forwarded to the Labor and Industry Review Commission and a confirmation of timely petition for review was mailed to the parties.

On October 6, 2006, the commission issued an order (1)  finding that:

1. there was no authority upon which to base the June 10, 2004 and August 2, 2006 post decision changes, given Wis. Stat. § 108.09(4)(f) and the receipt of the employee's petition at the Milwaukee Hearing Office on June 2, 2004,

2. without proper jurisdiction, the June 10, 2004 and August 2, 2006 post decision changes were not final or valid decisions, within the meaning of Wis. Stat. § 108.09(6)(c), and

3. the employee's timely petition to the May 13, 2004 appeal tribunal decision, provided the authority for the commission to take action to resolve this matter within the meaning of Wis. Stat. § § 108.09(6)(a) and (d).

Consequently, the amendment and set aside were void and, if necessary for technical departmental record purposes, were to be set aside. Additionally, the commission ordered the taking of additional evidence, before an administrative law judge acting on behalf of the commission, on the merits of the case and pursuant to Wis. Stat. § 108.09(6)(d). (2)  In particular, the commission remanded the matter for receipt of the exhibits marked at the original hearing. While the exhibits were identified, the parties were not specifically questioned regarding whether the exhibits actually supported the Director of Nursing's testimony regarding the absences leading to discharge.

Administrative Law Judge Lustig conducted the remand hearing on December 12, 2006 and the matter was forwarded to the commission for decision. The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted at the original and remand hearings. Based on its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked for 19 months as a certified nursing assistant for the employer, a long-term care facility. On September 21, 2003, she transferred to first shift hours. Her last day of work was March 11, 2004 (week 11).

On January 20, 2003, the employee received a written warning for excessive absences and tardiness. On May 19, 2003, she received a warning and suspension for excessive absenteeism and failure to provide proper notice of absenteeism. On December 3, 2003, the employee received a final warning and suspension for excessive absenteeism. In particular, since the prior discipline, the employee had four "call-ins."

The employer's director of nursing (DON) discharged the employee on March 15, 2004 (week 12). The DON cited the fact that the employee's attendance had not improved and she had "three call-ins" since her most recent discipline, dated December 3, 2003. In particular, the DON testified that the employee had three "no call/no shows," February 19, 2004, February 23, 2004 and March 2, 2004 with the three "call-ins" on January 5, 2004, January 19, 2004, and March 1, 2004.

The DON testified that a "call-in" occurs when a worker notified the employer of his or her absence and is absent the entire shift. She further explained that a "no call/no show" occurs when a worker was scheduled but did not show or call. The DON also testified that a five-minute grace period for punching in is allowed before a worker is considered tardy. Without further specifics, the DON testified that there were also occasions when the employee was late even after changing her shift. Finally, she testified that she showed the employee a handbook which explained that seven "call-ins" in a year or two in a month was excessive. Neither the employer nor the employee offered a handbook as an exhibit for the hearing.

Allegedly, the employer's "Absence Log" is a computer summary of the employee's attendance; it was marked and received into evidence as Exhibit 2. Since the December 3, 2003 discipline, the log reflects the following for the employee:

1. "call-in" absences on January 5 and 19, 2004 and March 1, 2004,

2. "no call/ no shows" on February 19 and 23, 2004 and March 2, 2004, and

3. tardiness on December 4, 2004 and February 25 and 26, 2004, with a 7:20 arrival time for the February 25, 2004 tardiness.

"Call-In" sheets were also received into evidence. Those sheets were completed by the receptionist or unit clerk responsible for incoming calls. In addition to the "call-in" sheets, the employer submitted several "ABSENTEE SLIP"s/ ARRIVED LATE OR LEFT EARLY SLIP"s as part of the exhibits. (3)  Finally, the employer's payroll records for the employee were also received into evidence. For the above dates documented in the "Absence Log," the exhibits reflect:

The employer did not offer any call-in or absence sheets this date. The payroll record reflects that the employee worked that day from 6:48 a.m. to 2:28 p.m.

A "ARRIVED LATE OR LEFT EARLY SLIP" reflects that the employee contacted the employer at 6:40 a.m. for her 6:30 shift that day, January 5, 2004, indicating that she would be late to work that day. The slip also reflects that the employee arrived at work at 7:15 a.m. The payroll record does not reflect that the employee was paid for any hours that day.

The call-in sheet for January 19, 2004, reflects a 4:15 a.m. call from the employee indicating that she was calling in due to car trouble. An absentee slip for that day reflects the same. The payroll record reflects that the employee worked from 6:36 a.m. to 2:28 p.m. on January 19, 2004.

An absentee slip reflects that the employee was no call/no show for second shift work on February 19, 2004. The payroll record reflects no work for that day.

A call-in sheet for February 23, 2004 contains an entry that the employee was no call/no show for second shift. The payroll record reflects that the employee worked on February 23, 2004 from 6:34 a.m. to 2:27 p.m.

The employer did not offer any call-in or absence sheets for February 25, 2004. The payroll record reflects that the employee worked that day from 7:20 a.m. to 2:28 p.m.

The employer did not offer any call-in or absence sheets for February 26, 2004. The payroll record reflects that the employee worked that day from 6:33 a.m. to 6:53 a.m.

A call-in sheet for Monday, March 1, 2004 reflects a call-in from the employee ate 5:10 a.m. for her first shift work that day due to illness. Yet, an absentee slip from that day reflects that the employee called in ill at 4:30 a.m. and the payroll record reflects that the employee actually worked on March 1, 2004 from 6:30 a.m. to 2:25 p.m.

A call-in sheet for March 2, 2004, containing notations for both March 1 and 2, 2004 absences, contains an entry that the employee was no call/no show on March 2, 2004. The payroll record reflects that the employee worked on March 2, 2004 from 8:00 a.m. to 2:30 p.m.

The DON did not appear at the remand hearing; the employer's Director of Human Resources (HR director) appeared. The HR director testified that a worker was expected to notify the employer of his or her absence at least two hours before shift start time. She also testified that for a 6:30 start time, a worker would be given until 6:45 to appear before being considered a no call/no show. She conceded that the employer's allegation of a no call/no show on February 23, 2004 was incorrect as was the employer's call-in notation for March 1, 2004.

Although not documented as incidents of tardiness or no call/no show, the employer's payroll records reflect that, after December 3, 2006, the employee punched in after 6:45 a.m. on February 13 and 16, 2004. Those payroll records additionally reflect punches after 6:35 a.m. but before 6:46 a.m. on the following dates after December 3, 2006: December 10, 2003, January 2 and 9, 2004, February 12, 17, 20, 21 and 27, 2004 and March 5, 2004. The employer did not label these punches occurring after the employee's normal 6:30 a.m. start time as improper or as violating the employer's policy.

Following the employee's discharge, she initiated a claim for unemployment insurance benefits.

Section 108.04(5) of the Wisconsin Statutes denies unemployment insurance benefits to a worker who is discharged for misconduct connected with the employment. Misconduct connected with employment means conduct showing an intentional and substantial disregard of the employer's interests or of the employee's job duties and obligations. Boynton Cab Co. v. Neubeck & Ind. Comm., 237 Wis. 249 (1941).

The issue to be decided is whether the employee's actions, which led to the discharge by the employer, constitute misconduct connected with the employment.

The employer contended that the employee's discharge was for misconduct connected with her employment. Specifically, it argued that the employee violated its attendance expectations after warning and that this continuing violation evinced a willful and intentional disregard of the employer's interests and the standards of conduct that the employer had right to expect. Yet, even after the remand hearing, the commission has struggled to determine the employer's attendance expectations given the testimony of its witnesses and the attendance record documents received as exhibits. More problematic, is the employer's concession that the dates of February 23 and March 2, 2004, as cited by the decision maker for the employee's discharge were not accurate. These facts together with the employee's credible testimony that she performed her work to the best of her ability, leads the commission to find that the employer has failed to meet its burden to establish that the employee's attendance record constituted misconduct connected with the employment.

The commission therefore finds that in week 12 of 2004, the employee was discharged but her discharge was not for misconduct connected with her work, 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 as of week 12 of 2004, if otherwise qualified. There is no overpayment as a result of this decision.

Dated and mailed January 16, 2007
burksoc . upr : 150 : 2   MC 605.01

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The commission did not consult with the administrative law judge prior to reversing. The commission did not reverse the ALJ based on a differing impression of witness credibility or demeanor. Instead, the commission reversed the ALJ's decision because it reached a differing legal conclusion when applying the law to the record resulting from the original hearing and the remand hearing.

cc: Attorney Debra A. Slater



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Footnotes:

(1)( Back ) A companion order was issued by the commission for a separate discharge determination involving the employee and another employing unit because the delay in the processing of this petition created a reason beyond her control for filing a late appeal to that determination. That is hearing number 06607125MW and the hearing is pending for January 17, 2007. That is a separate issue affecting the employee's eligibility and she is advised to attend that hearing.

(2)( Back ) At the remand hearing, the administrative law judge disclosed that he had contacted the review attorney who drafted the order for the Commission regarding the specifics of the remand. At the hearing, he explained, that the purpose of the remand was receipt of the exhibits and to allow the parties to address any inconsistencies within those exhibits related to the employee's attendance, as noted in the language of the remand. While such a contact is unusual, there is no statute or rule which expressly prohibits ALJs in Unemployment Insurance cases from engaging in such contacts. More importantly, the nature of the contact was not prejudicial; the ALJ was conducting the hearing on behalf the commission and was merely an attempt to clarify the additional evidence sought by the commission's order. The administrative law judge disclosed the specifics of the contact to the parties, no objections to the contact were made and both parties were given the opportunity to present additional evidence. Thus, the commission does not consider this contact to raise due process concerns. See Julie V. De Bauche, Trade Act Dec. Hearing No. 01403962GB (LIRC, September 6, 2002) and Charles G. Hale, Trade Act Dec. Hearing No. 05403510GB (LIRC, April 19, 2006).

(3)( Back ) At the hearing, the ALJ noted the "NCNS" written on several documents received as exhibits and speculated that "the review attorney or somebody put a note" on the exhibits. The commission wishes to note that it did not write on the exhibits and the record is unclear as to who made the notations. 

 


uploaded 2007/01/22