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

GALE D BIRCH, Employee

NEDLAND INDUSTRIES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07200397RL

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 4 of 2007, if otherwise qualified.

Dated and mailed June 1, 2007
birchga . usd : 115 : 1   MC 606  MC 605.09

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION


The employee worked more than three years as a general laborer for the employer, a manufacturer of refuse and recycling equipment.

The employee was discharged on January 22, 2007, for violating the employer's attendance policy.

Wisconsin Statutes § 108.04(5g) is not applicable here because the employer's attendance policy, contrary to the requirements stated in this statutory provision, was not uniformly applied to all workers, i.e., the record shows that the employer provided "second chances" in the application of the policy to certain of its workers.

The remaining question then is whether the employee's attendance record satisfies the general misconduct standard enunciated in Boynton Cab Co. v. Neubeck & Ind. Comm., 237 Wis. 249, 296 N.W. 636 (1941).

Generally, absences with notice and for valid reasons will not support a conclusion of misconduct. See, Grijaliba v. Lancaster Mineral Point Milwaukee Care, UI Hearing No. 00608375 (LIRC Feb. 14, 2001).

The employee's three days of absence due to illness during the last year of his employment (2/14/06, 3/7/06, 10/17/06) were with notice and for a valid reason. In addition, both the employee's absence due to his son's injury (8/22/06), and his failure, due to the emergency nature of the incident, to provide prompt notice, were for valid reasons.

The employee's failures to punch out (12/14/05, 12/22/06) would not support a conclusion of misconduct since they were neither intentional nor frequent. It is clear that the employee was not trying to commit time theft, since, in the first case, he had already worked his entire scheduled shift, and, in the second, he had provided notice he was leaving.

What remains then are a day of absence to move (6/6/06), a day of absence due to incarceration (1/22/07), and two early departures for personal reasons (12/22/06, 1/17/07), all with notice. Even if these were not for valid reasons, they are not sufficiently egregious to support a conclusion of misconduct. See, e.g., Gameson v. Woodmans Food Market, UI Hearing No. 04002237LX (LIRC Aug. 31, 2004) (four invalid absences over a 15-month period not misconduct).

The employer, in its petition, argues that failure to meet the requirements of its no-fault attendance policy is per se misconduct. However, as the commission stated in Rosenogle v. Walker Stainless Equipment Co. Inc., UI Hearing No. 03008303BO (LIRC July 7, 2004), mere proof of absence, however frequent, does not create a presumption of misconduct. That is particularly true where the employer has a "no fault" attendance policy by which all tardiness and absence is treated the same, regardless of the reason. Godbolt v. Hondo, Inc. (LIRC, June 11, 1999). Misconduct will not be found if the absences are for valid reasons and are promptly reported to the employer. Simmons v Klemm Tank Lines (LIRC, June 30, 2003).

See, Gameson, supra.

The employer also argues that it has prevailed on a similar issue before the commission in the past. The commission assumes that the employer is referring to its decision in Nedland v. Nedland Industries, Inc., UI Hearing No. 99201248RL (LIRC March 8, 2000). The circumstances in that earlier case are not, however, similar to those under consideration here, i.e., during the employee's last six months of employment in the 2000 case, he was absent on thirteen occasions, some without notice, and late to work on seven. That record does not compare to the employee's two days of absence and two early departures here, all with notice, over a 13-month period.


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uploaded 2007/06/04