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

DALE D RABUCK, Employe

MONTEREY INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98004372JV

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 about 18 months as a machine operator for the employer, a manufacture of textile products. His last day of work was October 20, 1998 (week 43), when he was notified that he was being discharged from his employment with the employer due to excessive attendance policy violations.

The employer has a "no-fault" attendance policy that monitors its worker's attendance. An absence for more than two hours results in the assessment of two points. An absence or tardy of less than two hours results in the assessment of one point. At six and eight points, warnings are issued. Thirty days of perfect attendance earns one point back. The employer will not assess points for up to four absences in a contract year that are covered by a doctor's excuse. The employer also allows two absences for personal reasons. A worker who accumulates ten points is subject to being discharged.

The employe began 1998 with three points that carried over from the prior year. The employe was absent on January 9, 1998 due to illness. He did not see a doctor. He had five total points. The employe was absent on January 23, 1998, because he had the flu. He was assessed two more points for seven total points. The employe received a written warning on January 29, 1998. The employe was absent on February 5 because he still had the flu. Again he did not see a doctor. His point total reached nine. He received a written warning on February 12, 1998.

The employe received no additional points between February 6, 1998 and July 6, 1998. The employe was absent on February 27 but took a personal day for family matters resulting in no point assessment. The employe was on a medical leave for one week in April. He had medical documentation covering the leave and no points were assessed. On April 29, the employe used his second available personal day and was assessed no points. The employe was absent on May 15 and May 16 but had doctor's excuses resulting in no points. By July, based on his attendance without point assessment, the employe's point total dropped to six. On July 7 the employe was absent because of family problems. The attendance total reached eight. He received a written warning on July 17, 1998. In August the employe earned one point back for perfect attendance making his point total seven.

The employe was absent on September 21, resulting in two points being assessed and a point total of nine. The employe could not recall why he was absent on that day. He received a written warning on October 2, 1998.

On October 5 the employe's work hours were changed from 7 a.m. to 3 p.m., to 5 a.m. to 3 p.m. The employe generally would leave his alarm clock set at the same time. However, he had his son on the weekend of October 19 and had set the alarm clock on Saturday to pick up his son. He forgot to reset the clock. On October 19, 1998 he was late for work by 54 minutes resulting in one point being assessed. The employe was discharged on October 20, 1998 (week 6) because he reached ten points under the employer's attendance policy.

The issue to be decided is whether the employe was discharged for misconduct connected with his employment.

In Boynton Cab Co. v. Neubeck & Ind. Comm., 237 Wis. 249, 296 N.W. 636 (1941), the leading case with respect to the meaning of the term "misconduct" as applied to unemployment insurance 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 employee, 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 employee'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."

Under the legal standard set forth in the Boynton Cab case, mere proof of absence, however frequent, does not create a presumption of misconduct connected with the employment. In determining whether an employe's absenteeism constitutes misconduct connected with the employment, the courts have held that an employe's intent and attitude are the most important factors. Accordingly, misconduct will not be found if a worker's absences are for valid reasons and are promptly reported to the employer. PPG Industries v. DILHR & Reynolds, No. 161-399 (Wis. Cir. Ct. Dane County, Feb. 7, 1979); Ramlow v. Power Dispatcher's Equipment Co. & Ind. Comm., No. 107-419 (Wis. Cir. Ct. Dane County Mar. 2, 1962.)

There is no question but that the employe reached the point of discharge under the employer's policy. However, the employe's absences were for generally valid reasons and were with notice to the employer. Considering the employe's overall attendance record the commission cannot conclude that his absences, and one instance of tardiness, demonstrated an intentional and wilful disregard for the employer's interests.

The commission therefore finds that in week 43 of 1998, the employe was discharged from his employment but not for misconduct connected with his 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 43 of 1998, if he is otherwise qualified.

Dated and mailed: February 25, 1999
rabucda.urr : 132 : 1  MC 605.09

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission did consult with the administrative law judge regarding witness credibility and demeanor. The commission has found no compelling reason to doubt the employe's testimony regarding the reasons for his absences, notwithstanding whether he saw a doctor. To the extent the administrative law judge's decision reflects disbelief as to the reasons for the employe's absences the commission disagrees with such decision.

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