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


RACHEL B WALLACE, Employe

BRAKEBUSH BROTHERS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98003778BO


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

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked during almost eight years as a production line worker for the employer, a processor of chicken parts. Her last day of work was August 22, 1998.

The employer does not permit tardiness, but workers get 8 hours of excused time to use. It can only be used if a worker calls in before the start of her shift. Absences are not permitted without a doctor's excuse. The employer has a three step disciplinary policy, oral warning, written warning and possible suspension, and suspension or discharge.

In the early months of 1997, the employe posted into a production job on a different line because the posting said the hours were from 7 a.m. to 3:30 p.m., whereas her previous job had a 5:30 a.m. starting time. During the time period at issue the employe was a single parent raising four children ages 13, 11, 9 and 2. She wanted to obtain a position which made it easier for her to care for her children in the mornings. However, she later learned that the starting time for her new job could vary, depending on the product the employer was processing. Often, she would not get notice of her starting time until the day before.

On April 30, 1997, the employe was counseled for having several instances when she had been a few minutes late for work. On September 17, 1997, she was issued an oral warning for reporting to work at 7 a.m. when the posted start time for that day was 6:30 a.m. On October 3, 1997, she received another oral warning for being a few minutes late on October 2 and 3. On January 16, 1998, she received another oral warning for being 34 minutes late for work. On March 31, 1998, she was scheduled to start work at 6:30 a.m. She did not notify the employer that she would be late until 7:35 a.m. She reported to work at 8:09 a.m. As a result, she was issued a written warning.

On April 7, 1998, the employe did not report for work scheduled at 5 a.m. At 5:20 a.m. she telephoned the employer to report that she would be late. When she arrived at work at 6:02 a.m., she was issued a second written warning and told that her employment was being suspended indefinitely. She was told to meet with the employer on April 13 regarding her continued employment with the employer. On April 13, her employment was reinstated but she was warned that any further attendance violations would result in further discipline, and possibly, discharge. Thereafter the employe was absent twice, and late on one occasion due to transportation problems, but was not disciplined for the missed work time.

On August 22, the employe was scheduled to work at 5:00 a.m. but failed to report for work until 6:00 a.m. She was late because she set her alarm wrong. As a result, her employment was suspended indefinitely. On August 24, 1998 (week 35), the employer terminated her employment.

The issue to be decided is whether the employe was discharged for misconduct connected with her employment. The commission finds that she was not.

The employe was basically late because she has four children that require her attention before she can report for work. On several occasions she was late due to the necessity of getting the three eldest off to school and the youngest to a sitter. Several of the other times she was tardy were due to her misreading the starting time or not realizing the starting time had been charged. The foregoing also contributed to her late call-ins. The employe explained that before she had transferred she had been able to report to work on time and that had she known that the starting time for line 2 varied, she would not have transferred into that job. The employe's family circumstances caused her to miss work on a number of occasions. The commission cannot find her tardiness and absences were for generally invalid reasons, particularly where, as here, the employe's variable starting time, with short notice to the employe, clearly contributed to her tardiness. Certainly, not every occasion of tardiness or absenteeism was unavoidable, but the commission must consider the employe's overall attendance which simply does not rise to the level of intentional disregard or recurrent negligence necessary to constitute misconduct connected with her work.

The commission therefore finds that in week 35 of 1998 the employe was discharged from her employment but not for misconduct connected with her work 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 35 of 1998, if she is otherwise qualified.

Dated and mailed: December 8, 1998
wallara.urr : 132 : 1 MC 605.09

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission did not consult with the administrative law judge regarding his impressions of witness credibility and demeanor. The commission does not disagree with any credibility assessment made by the administrative law judge but has reached a different legal conclusion when applying the law to the facts.

 

PAMELA I. ANDERSON, COMMISSIONER, (Dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. The employe has been able to work the 5:30 a.m. shift and not be discharged. On the new shift which varied, she was even late by over one hour and a half on March 31, 1998. I agree with the administrative law judge and would affirm the appeal tribunal decision.

Pamela I. Anderson, Commissioner


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