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

JAMES W. MERKEL, Employee

LANG FURNITURE INC., Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06001929MD


On July 5, 2006, an administrative law judge for the Department of Workforce Development (department) issued an appeal tribunal decision in this matter finding that in week 14 of 2006, the employer discharged the employee but not for misconduct connected with his employment, within the meaning of Wis. Stat. § 108.04(5). The employer petitioned for commission review and on October 19, 2006, the commission issued a decision affirming the appeal tribunal decision. On November 16, 2006, the commission set aside its own decision pending further consideration, pursuant to its authority under Wis. Stat. § 108.09(6)(b). On December 27, 2006, the commission issued a new decision modifying the memorandum opinion of its first decision, but reiterating its finding that the employee had not been discharged for misconduct and was therefore eligible for unemployment benefits if otherwise qualified. The department appealed this decision to Dane County Circuit Court, which on September 4, 2007, set aside the commission's decision and remanded the matter to the commission for reconsideration of the misconduct issue, with direction that the commission utilize the court-delineated standard for commission review.

Based on the applicable law, records and evidence in this case, and after consultation with the administrative law judge regarding the credibility and demeanor of the witnesses, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked for approximately eight months as an assembler for the employer, a furniture manufacturer. He was discharged for attendance problems on April 3, 2006 (week 14). At issue is whether or not this discharge was for misconduct connected with his employment, within the meaning of Wis. Stat. § 108.04(5).

On five occasions in the late fall of 2005, the employee had either been tardy or had failed to show up for work. However, at a company-wide "kickoff luncheon" held on January 3, 2006, the employer introduced a new attendance policy that provided:

"All Lang Companies employees will be excused for 3 absent days during the calendar year. Employees will be allowed an additional 5 tardy occurrences during the calendar year. Any absent/tardy activity beyond this limit will not be tolerated and termination of employment will follow. Remember to always call in and report an absent or tardy event as soon as possible."

The employee was absent from the luncheon on January 3, 2006, due to illness. He therefore did not receive a written copy of the employer's new attendance policy until March 16, 2006, when the employer's owner held a companywide meeting at which it was explained that this new attendance policy was retroactive to January 3, 2006. The employee was tardy on February 16, 2006, March 6, 2006, and March 14, 2006. No formal discipline was given for these occurrences. The employee did not report to work on March 20 through 22, 2006, choosing instead to perform construction work on his duplex. On March 31, 2006, he was tardy again, and this last incident prompted the employer's owner to review the employee's attendance record. When the owner saw that the applicant had missed three consecutive workdays in March, after also missing a workday on January 3, 2006, he discharged the employee on April 3, 2006.

The employee asserted that he acted within his rights under the employer's new attendance policy, which provides that             ". . . employees will be excused for 3 absent days during the calendar year." He asserted that he legitimately understood the new policy to have been effective with the date he learned of it, March 16, 2006.

First, after careful reconsideration of the evidence and after consultation with the administrative law judge, the commission found credible the owner's testimony that at the meeting held on March 16, 2006, the owner did explain that the new attendance policy was retroactive to the first day of work in 2006 (January 3, 2006). The commission inferred that it would be highly unlikely for the owner to hold a companywide meeting to explain "exactly what was expected" under the new attendance policy, but fail to explain the effective date of that new policy. Furthermore, the plain language of the policy refers to absences and tardiness occurring "during the calendar year." The credible inference is that the employee chose to interpret the new attendance policy to suit his own purposes, and ignored the language of the policy as well as the owner's explanation of it.

Second, the employee deliberately chose to disregard the employer's interest in having him at work on March 20 through 22 of 2006, and instead pursue his personal interests. While the new attendance policy did not make reference to what reason(s) might be given for "3 absent days," no reasonable employee would interpret this policy language to excuse a deliberate decision to miss work for 3 consecutive days for a purely personal reason. It is evident that the employee understood this, because he originally told the employer that he was absent on March 20 and 21 because he had no ride to work (Hearing Exhibit 18). He related the same excuse to a department investigator who interviewed him on April 24, 2006, and additionally told that investigator that he had been sick on March 22, 2006 (Hearing Exhibit 22). The employee's overall credibility in this matter is markedly lacking.

Finally, the employer's owner credibly testified that the employee had been verbally warned on several occasions that his attendance record was unsatisfactory. Considering all these circumstances, the employee's calculated decision to miss three consecutive days of work for personal reasons, and attempt to claim that he was acting within the parameters of the new attendance policy, evinced a willful, intentional, and substantial disregard of the employer's interests.

The commission therefore finds that in week 14 of 2006, the employer discharged the employee for misconduct connected with his employment within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employee was paid unemployment benefits totaling $2,152.00 ($161.00 in week 14 of 2006, and $181.00 per week for weeks 15 through 25 of 2006), for which he was not eligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03(1); and that pursuant to Wis. Stat. § 108.22(8), he is required to repay the sum of $2,152.00 to the Unemployment Reserve Fund.

The commission further finds that waiver of benefit recovery is not required under Wis. Stat. § 108.22(8)(c), because the overpayment was not the result of departmental error.

The initial benefit computation (Form UCB-700) issued on April 9, 2006, is set aside.

DECISION

The decision of the appeal tribunal is reversed. Accordingly, the employee is ineligible for unemployment benefits beginning in week 14 of 2006, and until seven weeks have elapsed since the end of the week of discharge and he has earned wages in covered employment performed after the week of discharge equaling at least 14 times his weekly benefit rate which would have been paid had the discharge not occurred. The employee is required to repay the sum of $2,152.00 to the Unemployment Reserve Fund.

For purposes of computing benefit entitlement: Base period wages from work for the employer prior to the discharge shall be excluded from any computation of maximum benefit amount for this or any later claim. If the employee was also paid base period wages from work by other covered employers, the excluded wages shall be used to determine benefit eligibility. However, any benefits otherwise chargeable to a contribution employer's account shall be charged to the fund's balancing account.

Dated and mailed January 8, 2008

merkeja . urr : 185 : 8 MC 605.01

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

NOTE: Repayment instructions will be mailed after this decision becomes final. The department will withhold benefits due for future weeks of unemployment in order to offset overpayment of U.I. and other special benefit programs that are due to this state, another state or to the federal government.

Contact the Unemployment Insurance Division, Collections Unit, P.O. Box 7888, Madison, WI 53707, to establish an agreement to repay the overpayment.

JAMES T. FLYNN, Chairman, (dissenting):

This is admittedly a close case. One could argue that the employee knew or should have known that the employer's attendance policy changes were retroactive to the beginning of the calendar year. However, the clearest evidence is that the employee learned of the policy on March 16th when he received a copy of the written policy. Thus, the employee could reasonably believe that the policy was prospective in nature.

Similarly, it may be argued that the employee knew or should have known that the policy did not countenance a 3 day leave at the pleasure of the employee. However, a permissible reading of the employer's written policy is that a 3 day absence "will be excused" regardless of the employee's reasons for being absent. If the employer had not intended such a reading it should have written a clearer policy.

For these reasons I do not believe that the employer has met its burden of proving that the employee acted in "wilful or wanton disregard" of the employer's interest such as would manifest a "wrongful intent or evil design" on the part of the employee as required by the landmark case that defines misconduct, Boynton Cab v. Neubeck, 237 Wis. 249, 296 N.W. 636 (1941).  I therefore respectfully dissent from the majority's decision.

/s/ James T. Flynn, Chairman


cc: Attorney Daniel J. LaRocque


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