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


MICHAEL L TATE, Employe

OUTBOARD MARINE CORP, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98605761MW


On August 22, 1998, the Department of Workforce Development issued an initial determination which held that the employe was discharged for misconduct connected with his employment. As a result, benefits were denied. The employe filed a timely hearing request and a hearing was held before an appeal tribunal. On September 22, 1998, the appeal tribunal issued a decision which affirmed the initial determination. The employe has filed a timely petition for commission review.

Based on the applicable law, records and evidence in this case, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked for the employer, a manufacturer of boat motors and propellers, for about seven months as a polisher. His last day of work was July 24, 1998. He was discharged on July 29, 1998 (week 31).

The employe was scheduled to work on July 26, 27, and 28, but was incarcerated on those days after being arrested for drinking and driving. The employe's girlfriend called the employer's absenteeism line and the employer's nurse on each day of the employe's absence to provide notice for the employe. When the employe returned to work on July 29 the employer discharged him for poor attendance. The employe had never received any prior warnings for poor attendance.

The question to decide is whether the employe was discharged for misconduct connected with his employment.

In Boynton Cab v. Neubeck, 237 Wis. 249, 296 N.W. 636 (1941), the leading case with respect to the meaning of the term "misconduct" as applied to unemployment compensation in the United States, the court said, in part, as follows:

". . . the intended meaning of the term `misconduct' . . . is limited to conduct evincing such wilful or wanton disregard of an employer's interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employe, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer's interests or of the employe's duties and obligations to his employer. On the other hand mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good- faith errors in judgment or discretion are not to be deemed `misconduct' within the meaning of the statute."

The employe missed three days of work under circumstances that were preventable, but with daily notice to the employer. The employe had no prior warnings for poor attendance, and no evidence was presented at the hearing to suggest that he was aware his actions could result in his discharge. These facts and circumstances do not warrant a finding of misconduct.

The commission, therefore, finds that in week 31 of 1998 the employe was discharged and not for misconduct connected with his employment, within the meaning of Wis. Stat. § 108.04 (5).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employe is eligible for benefits beginning in week 31 of 1998, provided he is otherwise qualified. There is no overpayment with respect to this issue.

Dated and mailed: November 10, 1998
tatemic.urr : 164 : 1 MC 605.091

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission did not consult with the administrative law judge about witness credibility. The commission's reversal in this matter did not involve an assessment of the credibility of witnesses, but is as a matter of law.


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