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

JOHN T MARCELINO, Employee

STOUGHTON TRAILERS LLC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07000960MD


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 as a second-shift assembler for the employer, a truck trailer chassis and container manufacturer.

The employee was discharged on February 7, 2007 (week 6).

The issue is whether the actions for which he was discharged constitute misconduct connected with his employment.

During the last year of his employment, the employee was tardy 18 times, on three occasions (5/16/06, 1/9/07, 2/6/07) for more than one hour; left work early twice (5/8/06, 8/23/06); and was absent once (12/28/06).

For each attendance incident, the employee was issued, and signed, a written counseling record. The employee was aware, and these counseling records stated, that an accumulation of ten attendance points would result in his termination.

The employee had valid reasons for both early departures from work, i.e., on 5/8/06, he was experiencing chest pains and immediately sought medical attention, and, on 8/23/06, he was passing a kidney stone and went to a hospital emergency room.

The employee did not offer an excuse for his absence of 12/28/06.

The employee attributed his tardy of 5/16/06 to an accident on I-90; of 1/9/07 to traffic; and of 2/6/07 to the closing of I-90 due to snow and ice conditions of which he was unaware.

The employee attributed his other tardies to not giving himself enough time to get to work.

Wisconsin Statutes § 108.04(5g) is not applicable here because the employee was not discharged for failure to give proper notice of his absences or tardies.

The question then is whether the employee's overall attendance record supports a conclusion of misconduct within the meaning of Wis. Stat. § 108.04(5).

The employee testified without rebuttal that many of his tardies were for only a few minutes, and, on three or four occasions, he would have clocked in on time if the employer would have permitted him, consistent with its typical practice, to use a time clock in another location.

Moreover, during the last six months of his employment, i.e., after August 7, 2006, the employee was tardy only six times; of these six, the three occurring in October and December of 2006 were by two minutes or less; and there were mitigating circumstances in regard to the final two, which occurred on January 9 and February 6, 2007.

This record of tardiness, combined with one absence without valid reason, is not sufficient to support a conclusion of misconduct.

The commission therefore finds that in week 6 of 2007, the employee did not voluntarily terminate his employment within the meaning of Wis. Stat. § 108.04(7) but that he was discharged and his 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 6 of 2007, if otherwise qualified.

Dated and mailed July 9, 2007
marcejo . urr : 115 : 1  MC 605.01

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

 

NOTE: The commission did not confer with the administrative law judge before reversing his 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: Anna Petrini


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