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

LACREASA  A  WELCH, Employee

DIGGERS HOTLINE INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06607906MW


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 45 of 2006, if otherwise qualified.

Dated and mailed June 1, 2007
welchla . usd : 145 : 1 MC 605.01  PC 749

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

In its petition for commission review, the employer argues that the ALJ's finding, that the employee turned in doctor's excuses for three absences in September, is not supported by the record as the employer's witness indicated that the employee promised to provide the excuses but failed to do so. However, at the hearing, the employee testified that she gave her doctor's excuse to her supervisor. The employee's supervisor did not appear at the hearing and therefore the employee's testimony in that regard was not disputed.

The employer further argues that, with respect to the employee's testimony that the employee tried to explain to her supervisor and the manager that the clocks were not in sync; the systems are run from different time sources and as such, keep different times. The employer argues that nonetheless, the systems would be accurate in isolation. In other words, if the employee had kept track of her time by using only her phone, it would accurately record the amount of her break. While this may be true, the employer did not make this clear to the employee.

The employer argues that the employee was told that, for a period of two months, the employer would not consider her late if she extended her break by less than four minutes. However, after August, the employee took only one long break, for 19 minutes and as such, any misunderstanding the employee may have had about her supervisor's statement is not relevant to whether her discharge was for misconduct.

The employer argues at some length that notes made by the employee's supervisor point out that in the opinion of her supervisor, the employee had a poor attitude. However, the employee's supervisor did not attend the hearing and present any firsthand testimony about the employee's attitude or any physical gestures, such as rolling her eyes, that the employee may have made. Therefore, the employer failed to establish that the employee had a poor attitude toward her job that contributed to her attendance infractions.

Finally, the employer argues that the ALJ relied upon cases that are decades old and that such cases do not reflect the culture of the 21st Century Call Center Industry. However, the commission has consistently applied the definition set forth in Boynton Cab. Co. v. Neubeck & Ind. Comm., 237 Wis. 249 (1941) to determine whether the actions for which a worker is discharged are misconduct. This consistency in the definition of the term allows the parties to be aware, in advance of the hearing, of what constitutes misconduct for unemployment purposes and helps to ensure that all parties with cases before the department and commission are treated in a fair and consistent manner.



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uploaded 2007/06/04