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

TRINA A BIERMAN, Employee

COUNTY OF SHAWANO, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06402810GB


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 13 years as a certified nursing assistant (CNA) for the employer, a county nursing home. She was discharged on September 14, 2006 (week 37).

The issue is whether the actions for which she was discharged constitute misconduct connected with her employment

The employee had a poor attendance record, and, as a result, was issued a written warning on January 26, 2006, and a three-day suspension on June 20, 2006. The notice accompanying the suspension (exhibit #1) stated, "The issuance of further disciplines may subject you to other disciplinary action, including discharge."

After this suspension, the employee had unexcused absences on July 15, August 5, August 7, August 17, and August 28. The employee attributed these absences to illness. These absences would have been excused had the employee provided medical documentation to the employer but she failed to do so.

Some time prior to Wednesday, September 6, a sign-up sheet was posted for any CNA who wanted to pick up the 6am-2pm shift on Saturday, September 9. The employee signed up for the extra shift, but was not confident she would receive it because it was her understanding, based on past employer practice, that the employer would first choose volunteers who, unlike the employee, would not qualify for overtime for the shift, and, if none were available, would then choose the most senior worker. Although the employee had more seniority than most CNAs, she was not the most senior.

On Wednesday, September 6, the employee checked the weekly schedule and noted that her name had not been penciled in for the morning shift on Saturday, September 9. She expected that enough time had passed since she had signed up for the shift that a final assignment would have been made. The employee was not scheduled to work on Thursday or Friday. On Saturday, the employee received a call from the employer just after 6 am asking why she had not reported to work the 6 am shift. The employee explained that she was not aware she was scheduled to do so, and hurriedly made her way to the nursing home, arriving at 6:52 a.m.

The employer's witness, its former manager, testified that it had been the employee's responsibility to contact the employer to determine whether she was scheduled to work the extra shift on Saturday. The employee testified that, although she had done this in the past, presumably when shifts became available on short notice, she had not done so in this instance because the shift was not scheduled on short notice and she had checked the schedule before leaving work at the end of her evening shift on Wednesday.

The employee was reasonably justified, given the timing of events here, in relying upon the schedule she had checked after the evening shift on Wednesday, and the employer did not successfully rebut her testimony that this schedule did not indicate she had been scheduled to work the morning shift on Saturday. Moreover, the employee had no reason to expect that she would definitely be assigned to work this shift.

The question then becomes whether, based on the employee's attendance record prior to Saturday, September 9, 2006, benefits should be denied.

Wisconsin Statutes § 108.04(5g) is not applicable here because lack of proper notice was not the basis for the employee's discharge; and because, even if it had been, the employer's attendance policy, contrary to the requirements stated in this statutory provision, does not define what constitutes a single occurrence of tardiness or absenteeism, and was not uniformly applied to all workers.

Moreover, the employee's attendance record does not satisfy the general misconduct standard enunciated in Boynton Cab Co. v. Neubeck & Ind. Comm., 237 Wis. 249, 296 N.W. 636 (1941).

The commission has been consistent in holding, except in those cases in which the alleged conduct is sufficiently egregious, that, before there can be a finding of misconduct, the employee has to be aware or have reason to be aware that her job is in jeopardy or will be if she engages in the subject conduct. See, e.g., Hainz v. Nelson Industries, Inc., UI Hearing No. 00003095MD (LIRC Oct. 3, 2000); Marcolini v. Alma Public Schools, UI Hearing No. 78-20774EX (LIRC May 29, 1979); Munoz v. LaCosta, Inc., UI Hearing No. 02607640MW (LIRC April 4, 2003). Here, neither the notice of suspension, which states that the employee could face discharge after the issuance of further disciplines, not the occurrence of further attendance violations, nor any other practice or policy of which she had reason to be aware, would have placed the employee on notice that further unexcused absences placed her job in jeopardy.

The remaining question, then, is whether the subject conduct was sufficiently egregious to relieve the employer of its responsibility to make the employee aware that her job would be in jeopardy if she continued to engage in it.

The employer, however, essentially concedes that the employee's attendance record, without the September 9 incident, was not sufficiently egregious to justify her discharge. The employer's witness testified that this was the incident that "broke the camel's back" and "caused the termination decision to be made." Although the employer tries to downplay this testimony by its only witness in its argument to the commission, it had a chance to prove that the discharge decision would have been made even without the September 9 incident but failed to do so.

The commission therefore finds that in week 37 of 2006, the employee did not voluntarily terminate her employment within the meaning of Wis. Stat. § 108.04(7) but that she was discharged and her discharge was not for misconduct 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 37 of 2006, if otherwise qualified.

Dated and mailed May 2, 2007
biermtr . urr : 115 : 1   MC 606 MC 605.09

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner


NOTE: The commission did not confer with the administrative law judge before reversing her decision, because its reversal was not based upon a differing view as to the credibility of witnesses, but instead upon a differing conclusion as to what the hearing record in fact established and upon a differing interpretation of the relevant law.

cc:
Attorney Howard J. Pitts
Attorney Jeffrey S. Kuglitsch


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uploaded 2007/05/15