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


CLIFFORD X MURRAY, Employe

RIVER HILLS WEST HEALTH CARE CENTER, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99600537MW


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, a skilled nursing care facility, for approximately five months as a certified nursing assistant. His last day of work was December 4, 1998 (week 49).

The employer has a progressive disciplinary system for attendance, in which it divides attendance violations into "units." Each absence is considered one unit, and a tardy is one fourth of a unit. Under the employer's system, accruing two units results in a verbal warning, four units merits a written warning, seven to seven and a half units results in a suspension, and eight units results in discharge.

The employer contracts with a van service, which picks up employes at designated spots and transports them to the employer's facility. However, the vans were unreliable and would frequently fail to arrive as scheduled. When the vans did come they were often late, which would result in the employe being late to work. During the course of the employe's five-month employment, the employer changed van services on two occasions. (1)

Prior to his last day of employment the employe accrued twelve attendance units based upon absence and, in accordance with the employer's policy, received progressive discipline. Three of the employe's absences were due to personal reasons. The remaining absences for which the employe received attendance units were because he missed the van to work. Additionally, the employe was tardy for work on twenty occasions, and left early due to illness on one occasion.

On December 1, 1998, the employe notified the employer he could not come to work because his niece had failed to return home, and he was left to care for her two children. He received a unit for that absence. On December 4, 1998 (week 49), the employe was discharged due to poor attendance.

The issue presented is whether the employe was discharged for misconduct connected with his work.

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 appeal tribunal concluded that the employe had a pattern of failing to report for work and that his continued absenteeism demonstrated gross negligence. The commission disagrees. The vast majority of the employe's absences, and presumably all of his tardy arrivals, were related to the fact that the employer's van service was unreliable and would either fail to pick him up or fail to get him to work on time. In rejecting this as an excuse for his poor attendance, the appeal tribunal considered it significant that, during the latter part of his employment the employe changed addresses, but continued to pick up the van at the location near his former address, necessitating a bus ride across town to get to the van stop. However, the employe testified without rebuttal that he managed to arrive at the van stop when he was supposed to, even after moving across town. The employe further testified that he attempted to change his pick-up location to one nearer his new address, but was unable to secure a place on that van. The commission sees no basis to conclude that the employe's absences or tardiness under these circumstances were the result of any culpable conduct on his part.

In addition to the above, the record indicates that the employe was assessed attendance units on four occasions for absences due to personal reasons. At least one of those absences, the incident in which he was compelled to stay home and care for his niece's children, was shown to be for a valid reason and with notice to the employer. The record contains insufficient evidence to establish whether the other three absences were for valid reasons and with notice. However, even presuming they were not, three such absences in a four-month period is not so egregious as to rise to the level of misconduct.

The commission, therefore, finds that in week 49 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 49 of 1998, provided he is otherwise qualified. He is not required to repay the sum of $1,768 to the Unemployment Reserve Fund.

Dated and mailed May 20, 1999
murracl.urr : 164 : 1  MC 605.09

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

NOTE: The commission conferred with the administrative law judge regarding witness credibility and demeanor. The administrative law judge indicated that the employe seemed to be credible. The administrative law judge explained, however, that if the employe was having trouble with the employer's van service, he should have made other arrangements to get to work or been more aggressive about pursuing the matter with the employer. However, one of the conditions of this employment was that the employer would provide transportation to the workplace. The fact that the employer changed van services two times during the employe's short tenure suggests that it was aware its van service was not reliable, and it is not clear what more the employe should have done to address the situation. Moreover, the employer did not establish that it would have been feasible for the employe to arrive at work by other means, and it does not appear that the workplace was accessible to the employe via public transportation. The commission does not believe the employe had an obligation to overcome the employer's failure to provide him with reliable transportation or that his resulting attendance problems evinced misconduct.


PAMELA I. ANDERSON, COMMISSIONER (dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. The employe was discharged for 20 tardies and 9 days where he missed work because he missed the van. He was not assessed points for missing the van on the weekends which he did three times.

The employer testified that "the van was reliable. We did not go through 3 van services. We had one that was provided by us and then we went to Advance Service that provided transportation." The employe testified "The driver would pick me up at the door. The company objected to that. It wasn't their intention to have the van service pick me up at the door. They didn't know the driver was doing that. He did it on his own." The number of days missed by the employe because he missed his van increased over time and were much worse after he moved. I found the employer's story to be more credible than the employe's because the van service did not miss the employe very much until November.

Therefore, I agree with the administrative law judge and would affirm the appeal tribunal decision.

__________________________________
Pamela I. Anderson, Commissioner

cc: JAMES B SCHMIDT
CONTINENTAL INVESTIGATIONS & SEC


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Footnotes:

(1)( Back ) The dissenting commissioner points out that the employer's witness, the assistant director of nursing, testified the vans were reliable and that the employer only went through two van services, not three. However, it was not demonstrated that the employer's witness had any firsthand knowledge about the employer's van service. Moreover, in spite of her general assertion that the vans were reliable, the witness was unable to rebut any of the employe's specific testimony to the contrary.