STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)
DAVID A CRAMER, Employe
WALGREEN CO ILLINOIS, Employer
UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00000160MD
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 distribution center for a retail store, for six years as a shipping loader. His last day of work was December 10, 1999 (week 50).
The employer has an attendance policy which provides that after thirteen "partial absences" in a calendar year an employe will be discharged. The employer defines a partial absence as missing any portion of a regular shift, including arriving late for work, leaving for a period of time during a shift, or leaving early. Failure to punch a time card is also considered a partial absence, although the first two "no punches" are excused, provided a supervisor can verify that the employe was present at work.
On January 12, 1999 the employe had a "no punch," which the employer excused. He was tardy for work on January 19. The employe left work early due to illness on February 16. He also failed to punch in that day, which counted as his second excused "no punch." On March 15 and April 5 the employe was tardy. On May 3 he left work early for a doctor's appointment.
On May 6 the employe received a verbal warning based upon the aforementioned partial absences. Subsequent to this warning, the employe was tardy on May 17 and left work early due to illness on June 29. He was late for work on June 30. On July 2 the employe was issued a written warning for poor attendance.
On July 20 the employe was late for work because he ran out of gas on the way to work. He was also late on August 27. On August 30 the employe received a final written warning, advising him that he now had ten partial absences and would be discharged if he accumulated thirteen such absences.
The employe had no partial absences in the months of September, October or November. However, he was late on December 1 and 2 due to oversleeping. The employe's brother died in late October, and the employe had been having severe nightmares about the incident which kept him up virtually all night on the nights in question. The employe made an appointment with a counselor the following week to discuss the matter.
On December 8 the employe reported for work on time and swiped his time card, but no punch-in was registered. The employe failed to notice the problem until he punched out for the day and discovered that his time card read "in" rather than "out." The employer considered the episode a failure to punch in and counted it as the employe's thirteenth partial absence.
On December 10, 1999, the employer notified the employe he was discharged for having accrued thirteen partial absences. The employe explained the circumstances surrounding his oversleeping on December 1 and 2 and informed the employer that he was planning to see a counselor, to which the employer responded that that was "tough." The employe also attempted to explain the circumstances surrounding his failure to punch-in on December 8, but was told that once he hit thirteen partials there was nothing that could be done about it, regardless of the circumstances.
The issue to be decided is whether the employe's discharge was due to 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 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."
The employe was discharged for having accrued thirteen "partial absences" in a calendar year. The commission has consistently held that frequent attendance violations do not in and of themselves amount to misconduct, lacking other evidence of wrongdoing. During the first eight months of 1999 the employe had three partial absences due to illness or for doctor's appointments, which the commission considers to be valid reasons for missing work. He was also tardy on seven occasions, and was placed on notice that three additional partial absences during the year would result in his discharge. While the commission agrees that the employe was tardy more often than was acceptable, after receiving a final warning he accrued no partial absences whatever for the next three months of his employment. Although the employe was subsequently late on two occasions in December due to oversleeping, there were mitigating circumstances surrounding this episode, and the employe had taken steps to prevent repeat incidents by making an appointment to see a counselor. On balance, the commission does not believe that the employe's attendance record was so egregious as to evince a deliberate and substantial disregard of the employer's interests or the standards of conduct the employer had a right to expect of him.
Finally, with respect to the employe's "no punch" on December 8, the employer did not dispute that the employe arrived at work on time and attempted to punch in. Although the employe testified that the time machine failed to detect a swipe on occasion, there is nothing to suggest that this was a frequent problem, and the commission does not believe the employe's failure to ensure that his punch-in registered demonstrated misconduct.
The commission, therefore, finds that in week 50 of 1999, the employe was discharged and not for misconduct connected with his employment, within the meaning of Wis. Stat. § 108.04(5).
DECISION
The appeal tribunal decision is reversed. Accordingly, the employe is eligible for benefits beginning in week 50 of 1999, provided he is otherwise qualified. He is not required to repay the sum of $2,079 to the Unemployment Reserve Fund.
Dated and maile April 7, 2000
crameda.urr : 164 : 2 MC 605.09
/s/ David B. Falstad, Chairman
/s/ James A. Rutkowski, Commissioner
NOTE: The commission did not confer with the administrative law judge regarding witness credibility and demeanor. The commission's reversal does not rely upon a differing assessment of witness credibility, but is as a matter of law.
PAMELA I. ANDERSON, COMMISSIONER (Dissenting):
I am unable to agree with the result reached by the majority herein and I dissent. I agree with the administrative law judge and would accept the appeal tribunal decision as my own.
________________________________________
Pamela I. Anderson, Commissioner
cc: WALGREEN
ATTORNEY GARD STROTHER
KREKELER & SCHEFFER SC
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