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

JEFFREY M CLAYTON, Employee

BANTA CORPORATION, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06402960AP


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.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employee is eligible for benefits beginning in week 48 of 2006, if otherwise qualified.

Dated and mailed March 21, 2007
claytje . usd : 115 : 1    MC 676

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION


The employee worked four years as a utility stockroom worker for the employer, a printing business.

The employee received progressive discipline for his unsatisfactory attendance record under the employer's progressive discipline policy. The employee was tardy on September 11, 2006, and received a two-day disciplinary suspension as a result.

The employee's next attendance infraction occurred on November 10, 2006. The employee was scheduled to begin work at 7:00 a.m. on November 10. It takes the employee about eight minutes to drive from his home to the work site. When the employee attempted to start his car on November 10 at 6:45 a.m., he discovered that his battery was dead. He tried to enter his garage to retrieve a battery charger but realized he was locked out of his house/garage. He immediately phoned the employer to provide notice that he would be late to work because of this situation. The employee then phoned his mother, to whom he had given his house keys so that she could attend to his dogs that day. His mother arrived around 7:00 or 7:05, the employee used the keys she gave him to enter his garage, the employee used jumper cables and his mother's car to jump start his car, and then drove straight to work, arriving at 7:39 a.m. The employee's car was in good working condition, and he had not offered car problems previously to the employer as a reason for absence/tardiness.

The employer, which has a no-fault attendance policy, imposed a 14-day disciplinary suspension, the next step in its progressive discipline system, for the employee's tardiness of November 10. It is that suspension which is at issue here.

Wisconsin Statutes § 108.04(6), states as follows:

108.04(6) Disciplinary suspension. An employee whose work is suspended by an employing unit for good cause connected with the employee's work is ineligible to receive benefits until 3 weeks have elapsed since the end of the week in which the suspension occurs or until the suspension is terminated, whichever occurs first. This subsection does not preclude an employee from establishing a benefit year during a period in which the employee is ineligible to receive benefits under this subsection if the employee qualifies to establish a benefit year under s. 108.06(2)(a).

Good cause in the context of a disciplinary suspension is a lesser standard than that for misconduct, yet some blameworthy conduct on the part of the employee, which may include single, isolated acts of negligence or poor judgment, must be shown. See, Waedekin v. Dept. of Health and Family Services, UI Hearing No. 7004197FL (LIRC March 19, 1998); Kaufman v. TLC, UI Hearing No. 9604155MW (LIRC Jan. 27, 2000).

The commission has consistently held that, once a disciplinary suspension has been imposed and served, there must be further culpable conduct on the employee's part to sustain a finding of misconduct connected with a subsequent discharge, i.e., the same incident may not serve as the basis for a disciplinary action and a subsequent discharge. See, Bebo v. Schindler Elevator Corp., UI Hearing No. 02609535MW (LIRC April 11, 2003); Jackson v. Ultra Mart Foods, Inc., UI Hearing No. 03000827NW (LIRC Dec. 4, 2003); Hollenberger v. WPS Insurance Corp., UI Hearing No. 06002829MD (LIRC Nov. 30, 2006). The rationale underlying this holding should apply as well when serial disciplinary actions are taken, i.e., once a disciplinary suspension has been imposed and served, there must be further culpable conduct on the employee's part to sustain a finding of good cause in regard to a subsequent disciplinary suspension.

Here, the employer failed to prove such further culpable conduct by the employee. Although the employee was tardy on November 10, he had a valid reason for such tardiness based upon a circumstance which he could not have reasonably foreseen, and he took reasonable action to advise the employer of this circumstance, to resolve it, and to get to work as soon it was resolved.

In its petition, the employer cites to an "example of a suspension for good cause" stated in Wis. Stat. § 108.04(6) and relating to continuing attendance deficiencies. However, such an example is not stated in the cited statutory provision. In addition, the commission was unable to locate such an example in the employer handbook or other department publications.

However, as stated in the petition, the example relates to "a suspension that occurs after warnings for attendance violations have failed to correct an employee's attendance problems." This language necessarily implies that a worker has engaged in further, uncorrected attendance violations or problems. As relevant to unemployment claims, attendance deficiencies, including tardiness, generally do not support a denial of benefits, i.e., are not considered cognizable attendance violations or problems, if they are with notice and for a valid reason. Here, the record shows that the only attendance deficiency the employee engaged in after receiving a disciplinary suspension in September of 2006 was his tardiness of November 10, which was with notice and for a valid reason.



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