JUSTIN J HILL, Employee

ALPHA BAKING CO INC, Employer

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:

The employee worked for the employer, a bakery, for four months in the shipping department. His last day of work was December 21, 2007 (week 51).

The employer has an attendance policy which provides that an absence must be reported to the supervisor no later than two hours before the start of the shift on each and every day of absence. If the employee knows he will be absent more than one day, he must notify the supervisor how long he will be off and then he need not call in every day. The employer assigns occurrence points to absences and tardiness, and the policy provides for progressive discipline, with discharge at ten points during a 12-month period. The policy also provides that, without regard to point totals, any pattern of habitual, chronic or excessive absenteeism may be grounds for discharge.

The employee was absent from work with notice on August 22, October 21, November 12, and December 16, 2007. All of those absences were due to illness. The employee accrued four occurrences under the employer's no-fault policy, but was not issued a warning.

The employee was absent on December 23, 26, 27, and 28 of 2007, because he was incarcerated. The employee contended that he asked a friend of his mother's to call in for him, and that his mother also called in, but the employer has no record of receiving such calls. Because it considered the employee's absences to be no-call-no-shows, the employer assessed two occurrences for each, putting the employee's point total at 12 occurrences. The employee was discharged on December 28, 2008 (week 52).

The initial issue to be decided is whether the employee's discharge was for excessive absenteeism without providing adequate notice to the employer, within the meaning of Wis. Stat. § 108.04(5g).

Wisconsin Statute § 108.04(5g) does not apply in this case because the employee did not have a sufficient number of absences without adequate notice to fall within the purview of the statute.

The next issue to be decided is whether the employee's discharge was due to misconduct connected with his employment, within the meaning of Wis. Stat. § 108.04(5).

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 employee was discharged for accruing over ten points in a year under the employer's no-fault attendance policy. While the employee's first four absences were for valid reasons and with notice to the employer, the employee was thereafter absent on four consecutive days of work because he was arrested for speeding while on a probation hold. The employee's extended absence from work was due to his own culpable conduct. Moreover, the employer has no record of having received notice of the employee's absences, and the employee agreed that he did not provide personal notice. The employee testified that he asked his mother's friend to call on his behalf and that she left a voice mail message stating he was sick. He subsequently stated that his mother called in on his behalf, as well, but later indicated only that these individuals "may" have left voice mail messages. The employee failed to specify when he talked to his mother or her friend, who he asked them to contact at the employer, or whether he asked them to call in every day or only once. The employee had no firsthand knowledge as to when or if the calls on his behalf were made, and although he had witnesses who could have provided that information, he did not arrange for them to come to the hearing. The commission is unpersuaded that notice was provided on the employee's behalf or that he attempted to make arrangements for a responsible person to provide such notice.

The employee was aware of the employer's attendance policy and knew or should have known that six or more additional attendance points would cost him his job. The commission believes that the employee's actions in missing four consecutive days of work without notice, under the circumstances presented in this case, evinced misconduct on his part.

The commission, therefore, finds that in week 52 of 2007, the employee was discharged for misconduct connected with his employment, within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employee was paid benefits in weeks 1 through 17 of 2008 in the total amount of $3,258.00, for which he was not eligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03(1). Pursuant to Wis. Stat. § 108.22(8)(a), he is required to repay such sum 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 although the overpayment did not result from the fault of the employee as provided in Wis. Stat. § 108.04(13)(f), the overpayment was not the result of a department error. See Wis. Stat. § 108.22(8)(c)2.

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 52 of 2007 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 her weekly benefit rate which would have been paid had the discharge not occurred. He is required to repay the sum of $3,258.00 to the Unemployment Reserve Fund.

Dated and mailed June 20, 2008
hillju.urr:164:1 MC 605.091

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

NOTE: The commission conferred with the administrative law judge who held the hearing about witness credibility and demeanor. The administrative law judge had no credibility or demeanor impressions to impart.

Repayment instructions will be mailed after this decision becomes final. The department will withhold benefits due for future weeks of unemployment in order to off set 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.

cc: Alpha Baking Co., Inc. (Manitowoc, Wisconsin)

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uploaded 2008/06/20