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

DAVID A RACETTE, Employee

CONSTRUCTION SOLUTIONS OF THE FOX VALLEY LLC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07402808AP


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, except that it makes the following modifications:

The fifth paragraph of the FINDINGS OF FACT and CONCLUSIONS OF LAW section is deleted, and the following substituted:

The employee did not report to work as scheduled on October 23-26, 2007 (week 43), and October 30-November 2, 2007 (week 44). The employer's implicit condonation of the employee's continuing no call/no show absences prevents a conclusion that the employee engaged in misconduct.

DECISION

The decision of the administrative law judge, as modified, is affirmed. Accordingly, the employee is eligible for benefits beginning in week 45 of 2007, if otherwise qualified.

Dated and mailed February 21, 2008
racetda . umd : 115 : 1    MC 605.05  MC 665.04

This condonation prevents a conclusion of misconduct here.

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION


The employee worked less than three months as a carpenter for the employer, a metal studs and drywalling contractor.

The record shows, through the employee's unrebutted testimony, that he told the employer when he was first hired that he was going through a divorce, and experiencing problems with his children, which could cause him to miss work, and the employer responded "Yeah."

The employee reported to work his shift on Monday, October 22, 2007, but missed the remaining four work shifts that week without notice to the employer.

The employee then reported to work his shift on Monday, October 29, 2007. The employer did not address with him at that time the employee's no call/no show absences the previous week. The employee then missed the remaining four work shifts that week without notice to the employer.

The employee phoned one of the employer's owners on Friday, November 2, apparently to find out whether he was still employed. This owner stated he would have to consult with the other owner. After doing so, the owner told the employee on Monday, November 5, that he had been fired.

The separation was a discharge. The next question then is whether the record supports a conclusion it was for misconduct.

It should first be noted that Wis. Stat. § 108.04(5g) does not apply here because, although the employer has a written attendance policy (exhibit #1), this policy does not define what constitutes a single occurrence of absenteeism as required by Wis. Stat. § 108.04(5g)(d)1.a.; the record does not show that the employer had given the employee at least one warning within the 12-month period preceding the discharge, as required by Wis. Stat. § 108.04(5g)(d)3.; and the record does not establish that the employer's policy was required to be applied uniformly to all employees within the meaning of Wis. Stat. § 108.04(5g)(d)4.

The remaining question then is whether the employee's attendance record meets the general misconduct standard set forth in Boynton Cab v. Neubeck, 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 his job is in jeopardy or will be if he engages in the subject conduct. See, e.g., Hainz v. Nelson Industries, Inc., UI Hearing No. 00003095MD (LIRC Oct. 3, 2000); Kovach v. Farm/Fleet Janesville, Inc., UI Hearing No. 05005166WK (LIRC Feb. 24, 2006).

Eight no call/no show absences in a two-week period of time would be sufficiently egregious to support a conclusion of misconduct even in the absence of warning.

However, there is another factor to be considered here. Not only did the employee put the employer on notice that he was having personal problems which may interfere with his ability to report to work, and the employer's only response to this notice was "Yeah;" but the employee attended work on October 29, between the two four-day periods of no call/no show absences, and the employer did not address his attendance record with him at that time. This establishes that the employer was implicitly condoning the employee's absences/lack of notice, which could reasonably have led the employee to understand, as he claims, that he could continue incurring such no call/no show absences without penalty.

This condonation prevents a conclusion of misconduct here. See, Dykstra v. Sulzer Machine & Mfg. Inc., UI Hearing No. 06201124RH (LIRC Oct. 6, 2006); White v. Riverside Coal, Inc., UI Hearing No. 02008327MD (LIRC July 31, 2003)(employee did not have reason to be aware that job in jeopardy where employer failed to take action despite employee's continuing pattern of tardiness and no call/no show absences).

The employer asserts in its petition that owner Eric Akey tried on numerous occasions to get in touch with the employee to discuss his attendance record, but the employee did not return his calls. This is not in the hearing record.



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