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


THOMAS N URICK, Employe

MET-AL INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99600055RC


An administrative law judge 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 administrative law judge. Based on its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked for the employer, an aluminum recycling firm, for over four years as a maintenance mechanic. His last day of work was November 23, 1998, and he was discharged on November 25, 1998 (week 48) for accruing too many absences under a no-fault attendance policy.

The employe was absent without notice on January 12, 1998, and received a verbal warning. He was absent due to illness on January 30, and received a second verbal warning. The employe was absent on March 4 because of a family matter and on March 31 because of illness, and received a written warning for having four absences in a rolling 12-month period. The employe was absent on April 6 and missed two half-days of work on April 15 and 16. For reasons that were not explained at the hearing, however, the employer did not count the two half-days of absence against him. The employe was absent on May 14, June 10, July 22, and August 18. The record contains no explanation for the majority of these absences, although it was established that the employe called to say he would be late on June 10, then failed to report to work or call back. The employe suggested that some of the absences were due to illness related to the dust and dirt in the working environment, but had no specific recollection of the dates on which those absences took place.

On September 18 the employe was notified that he would be suspended for three days, from September 21-23, based upon having accrued nine absences in the last year. The employe was advised that additional absenteeism would result in termination. He was absent on October 8 due to illness, but was not discharged at that point.

The employe's daughter-in-law passed away on Saturday, November 21. On Monday, November 23, the employe told the production supervisor that he had to attend a funeral on Tuesday. When the employe reported for work on Wednesday, he was notified by the human resources director, Milous Adams, that he was discharged. The employe told Mr. Adams that he had been at a funeral and, upon Mr. Adams' request, went home to get the obituary notice. (1) When the employe returned to work with the obituary Mr. Adams was unavailable, and the production supervisor told him that as long as he had the obituary he could go back to work. However, when Mr. Adams returned to work he notified the employe he was discharged.

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 employer contended that the employe was discharged for excessive absenteeism, and that he had notice his job was in jeopardy. The employer indicated that it decided to discharge the employe after he was a no-call-no-show on November 23. However, the employe testified that he told the production supervisor he would not be in on the day in question because he was attending a funeral. The employer did not disagree with this testimony, but maintained that its policy required the employe to submit a written request in order to miss work to attend a funeral. The employer further contended that only the human resources director or the employer's owner could approve such requests, and that the production supervisor lacked authority to do so. However, the employe denied having been told he would need to seek written approval to miss work for a funeral, (2) and testified that he thought the matter was taken care of because the production supervisor was the person he was supposed to talk to. The employe's understanding comports with the employer's written policy, which states, "Employees who are unable to appear for work as scheduled should immediately notify their supervisor. If the supervisor is unavailable, employees should contact another supervisor or a management person." Nothing in the policy suggests that the employe was required to obtain written permission to attend a funeral or that he needed to go beyond his supervisor to do so. Moreover, the record did not establish that the employe had any past practice of obtaining written approval from someone in higher management prior to an anticipated absence. Consequently, the commission credits the employe's testimony that he took appropriate steps to notify the employer that he would be missing a day of work.

While the commission agrees that the employe's overall attendance record was less than satisfactory, several of his absences were shown to be for valid reasons, and the employer did not demonstrate that his overall attendance record evinced a wilful and substantial disregard for its interests. Further, even a worker with poor attendance is entitled to miss a day of work in order to attend the funeral of a close family member. Where, as here, the employe notified the production supervisor of his anticipated absence, and presented the employer with a copy of the obituary notice after the funeral, the commission is unable to conclude that the incident which precipitated the employe's discharge evinced any culpable conduct on his part.

The commission, therefore, finds that in week 48 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 as of week 48 of 1998, provided he is otherwise qualified. He is not required to repay the sum of $1,160 to the Unemployment Reserve Fund.

Dated and mailed April 20, 1999
urickth.urr : 164 : 1 MC 605.05 MC 605.07

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

NOTE: The commission conferred with the administrative law judge about witness credibility and demeanor. The administrative law judge indicated that he credited the employer's testimony that the employe needed written approval for an absence and that the production supervisor lacked authority to approve an absence. The administrative law judge stated that the employer should know what its policies are. However, for the reasons set forth in the body of the decision, the commission is unconvinced that the employe needed to obtain written approval from higher management or that he had ever been made aware of such a requirement.


PAMELA I. ANDERSON, COMMISSIONER (dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. The majority relies on the employe story that he had told Leon about the funeral ahead of time. The employe's memory is shaky at best about whether he had given the employer prior notice of his last absence. He testified "In regard to why I was a no-call/no-show for her funeral, I thought I'd told Leon I had a funeral to attend and I had a vacation day scheduled for that Friday.In regard to whether he okayed it, he did not really say a whole lot about it. We were just talking in the maintenance shop on that Monday morning. The funeral was Tuesday."

The employe continued "I came back into work on the day I was discharged. My time card was not there, so I punched another card. I figured maybe it got reshuffled or something. I think I was called into Mr. Adams office at 9:30 or 10 am. He said I was discharged. I explained I'd attended a funeral. He asked me for an obituary notice. I was going to bring it in, but I didn't have it with me so he said okay if I could prove I attended. I said I could. He said go get the notice. I went and got it, but he was gone for a doctors appointment when I got back. Leon said I could go back to work as long as I had the notice, so I went back to work. Later in the afternoon, Mr. Adams called me in and said I was discharged. He had a copy of the funeral notice."

The employe said "In regard to why I needed the whole day off if the funeral was after work, it was just a visitation." Page 6 of Exhibit 3 is the obituary which states ""here will be a visitation only on Tuesday, November 24, 1998, from 5 to 7 p.m. at the Hanson Funeral Home." There was no funeral.

I am convinced if the employe had given prior notice, he would not have been fired. The employer had a plant shut down for two weeks in September. The employe testified he made plans for those days because there was no notice posted that maintenance personnel were supposed to work those days. The employer compromised with the employe but only requiring him to work 2 of the ten days. The employer did not use his tardies in firing him even though they were in the range of 3 or 4 hours each. I am convinced that he did not mention anything to Leon until the day he was fired. The employe testified "In regard to why I thought my final absence was taken care of when I spoke to Leon. His name is Leon Jutzronka, and that's basically who you are supposed to talk to."

The majority also found that there were no requirements for absents to have prior written permission. The employe said "the written approval is basically for vacation days and personal days."

I believe the employe was fired for his terrible attendance, his failure to give notice for his last absence and then saying it was for a funeral when there was no funeral at all.

I believe that the employe had been given sufficient warning to place him on notice that his employment was in jeopardy. His failure to comply with the notice requirements and poor attendance were sufficient to meet a willful and wanton disregard of the employer's interest and thus misconduct connected to his employment. I would affirm the result of the administrative law judge.

___________________________________
Pamela I. Anderson, Commissioner


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Footnotes:

(1)( Back ) The dissenting commissioner points out that the obituary notice, which was issued by the officiating funeral home, indicates that there was a "visitation" on November 24, rather than a "funeral." However, the majority does not agree with the dissent's suggestion that the use of the word "visitation" in the obituary notice means the employe lied when he stated he was going to a funeral. The dictionary definition of "funeral" encompasses all of "the observances held for a dead person usu. before burial or cremation." Webster's Ninth New Collegiate Dictionary, Merriam-Webster, Inc., 1990. A visitation at a funeral home clearly constitutes an observance held for a dead person, and the majority is convinced that the employe's use of the term "funeral" was neither inaccurate nor duplicitous.

(2)( Back ) The dissenting commissioner notes the employe's testimony that written approval was for vacation days and personal days. The employe's understanding that he needed to seek written approval for vacations and personal days, which are sought in advance, does not contradict his testimony that he was unaware he needed to submit a written request for funeral leave.