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


TRACY L SWEENEY, Employe

LEAR OPERATIONS CORP, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98004679JV


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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employe is eligible for benefits in weeks 44 and 45 of 1998, if otherwise qualified.

Dated and mailed July 1, 1999
sweentr.usd : 135 : 6 MC 676

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

In its brief, the employer argues that the employe failed to comply with the appropriate and applicable follow-up rules in the plant, despite being warned against leaving without permission, and that she failed to follow the proper procedure to provide medical justification for her absence, and that she admitted that she was "not really that sick." The employer further faults the ALJ for failing to consider the appropriate and applicable follow-up rules of the plant, when he decided that the employe's disciplinary suspension was not for good cause. Interestingly, at the hearing the employer argued to the ALJ that the good cause for the disciplinary suspension stemmed from the employe's violation of Shop Rule 6, which according to the employer's representative constituted leaving the employer's premises without a supervisor's permission.

At no time during the hearing was Shop Rule 6 or any of the appropriate and applicable follow-up written procedures presented at the hearing in support of the employer's representations of these rules. At a credibility conference with the ALJ, the ALJ noted that he found the employer's representation of Shop Rule 6 to be credible. However, the ALJ noted that the employer failed to establish whether the appropriate and applicable follow-up rules were actually followed by the employer. At page 25 of the transcript provided by the employer, the employer's witness testified that the supervisor "may or may not" customarily direct an employe to the nurse. In all honesty, this witness testified, "that would probably happen more frequently today than it did in the past." The witness also noted that a worker would always be eligible to see a nurse and a supervisor would not stop an employe from doing so. This testimony does not clearly indicate that an employe is required to see the employer's nurse or a health care provider on his or her own time. In fact, the only direct evidence in the hearing record is that the employe's supervisor did not offer or require the employe see the company nurse prior to leaving the employer's premises. Admittedly, the employe testified that if it had been requested of her, she still would not have seen the nurse because she believed that her illness did not warrant medical attention by either a nurse or physician. The question remains does this admission and the employe's decision to leave the employer's premises without supervisory permission constitute "good cause" within the meaning of Wis. Stat. § 108.04(6)?

After reviewing the evidence, conferring with the ALJ as to witness credibility, and considering the employer's arguments made in its brief, the commission is satisfied that the employer failed to establish that the employe's disciplinary suspension was with good cause within the meaning of Wis. Stat. § 108.04(6). First, the commission notes that the employer should have brought the written Shop Rule 6 and any other appropriate written follow-up rules to the hearing. While the commission does not question the credibility of the employer's witness in this regard, the written documentation would have clarified the employer's position. Additionally, the employer's witness was equivocal regarding the application and/or implementation of the appropriate follow-up rules that it cites to so specifically and certainly in its brief. Finally, the non-appearance of the employe's supervisor was critical in this case. The supervisor could have offered rebuttable evidence as to the employe's illness on the day in question. For these reasons, the commission affirms the appeal tribunal decision.

 

PAMELA I. ANDERSON, COMMISSIONER (Dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. I believe that there was agreement that Shop Rule 6 provided that an employe who leaves the premises without permission of their supervisor will be suspended for 3 days. If the employe had gone to the nurse or a medical care provider and received an opinion that she was ill on that day, she could have received points but no suspension.

The reason for the rule was to prevent employes from leaving the plant whenever they felt like it but were not sick. The majority places some emphasize on the question of whether the employer's supervisor directed the employe to see the company nurse. I don't think that matters because the employe had an alternative and that was to go to her own doctor for an excuse.

The employer did inform the employe at the time that he would have to apply shop rule 6 because they were short plant wide. The supervisor even double checked to be sure that they were short. The employe also testified that even if she had been told to see the nurse, she would not have gone.

While the rule seems extreme at first sight, it was necessary to take care of a problem the employer had with people who were really not sick leaving work. If the employe was indeed sick, she could have gotten an excuse from the nurse or her doctor.

I believe the employer has met the standard for other good cause for the suspension. Thus, I would reverse and find other good cause and deny benefits for the three days of the suspension.

Pamela I. Anderson, Commissioner

 

cc:

LEAR OPERATIONS CORP

ATTORNEY WILLIAM W EHRKE
CRIVELLO CARLSON MENTKOWSKI & STEEVES SC


[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]