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

CATHERINE LLOYD, Employe

AUTOTROL CORPORATION, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99605819MW

On August 6, 1999, the Department of Workforce Development issued an initial determination which held that the employe's discharge was not for misconduct for unemployment insurance purposes. The employer filed a timely request for hearing on the adverse determination, and hearing was held on September 7, 1999 in Milwaukee, Wisconsin before a department administrative law judge. On September 17, 1999, the administrative law judge issued an appeal tribunal decision affirming the initial determination. The employer filed a timely petition for commission review of the adverse appeal tribunal decision, and the matter now is ready for disposition.

Based upon the applicable law and the records and other evidence in the case, and after consultation with the administrative law judge, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked for the employer, a manufacturer of durable goods, for approximately eleven years as an assembler. Her last day of work was July 14, 1999 (week 29), when she was discharged. The issue to be decided is whether the employe's discharge was for misconduct connected with the employe's employment. The commission concludes that it was, and so reverses the appeal tribunal decision.

On February 2, 1998, the employe received a written warning for absences and instances of tardiness. The employe's attendance record for her last year of employment is attached to this decision. The employe would give the employer notice of her absences and most, but not all, were for valid reasons. The employe was also late on numerous occasions; a main reason for her instances of tardiness was her care of foster children, a boy and a girl. Her foster son was having problems at school and, on several occasions the employe was late because she had to either take her son to school or go to the school to discuss his problems. On other occasions, the employe was between one and five minutes late to work; the children's daycare was subsidized by the state but the state would only pay for a certain number of hours of daycare. The employe would cut too closely the time she dropped the children off at daycare, so as not to incur expenses herself for the children's daycare. The employe also missed work, on March 23, because she had to return home and turn off her iron. The employe was late to work on June 1 and June 2, by two and a quarter hours and twenty six minutes, respectively, because her alarm clock did not go off. The employe was absent for an unknown reason on June 9, and absent due to car problems out of town on June 15. At this point the employer imposed a three-day suspension upon the employe and informed the employe that should her excessive absenteeism continue, she would be subject to further disciplinary action up to and including termination of employment. The employe then was five minutes late to work on July 14, at which time she was discharged.

In Boynton Cab Co. v. Neubeck, 237 Wis. 249, 259-60, 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 commission must conclude that the employe's attendance record meets the misconduct standard. There is no question but that many of the employe's attendance failures were for valid reasons. Some were not, however, including the instances where the employe's alarm clock did not go off. Some of the employe's attendance failures were unexplained and, therefore, cannot be deemed to have been for valid reasons. Where, as here, an employe has a large number of attendance failures for legitimate reasons, it is the employe's responsibility to keep to a minimum attendance failures not for valid reasons. The employe did not do so. The commission therefore finds that, in week 29 of 1999, the employe was discharged for misconduct connected with her work, within the meaning of Wis. Stat. § 108.04 (5).

The commission also finds that the employe was paid unemployment insurance totaling $7,332.00, for weeks 30 of 1999 through 3 of 2000, for which she was ineligible and to which she was not entitled, within the meaning of Wis. Stat. § 108.03 (1). Pursuant to Wis. Stat. § 108.22 (8)(a), she must repay such sum to the Unemployment Reserve Fund. The commission finds, finally, that waiver of benefit recovery is not required under Wis. Stat. § 108.22 (8)(c). Although the overpayment did not result from employe fault, it also was not the result of departmental error. See Wis. Stat. § 108.22 (8)(c)2.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employe is ineligible for benefits beginning in week 29 of 1999, and until seven weeks have elapsed since the end of the week of discharge and the employe has earned wages in covered employment performed after the week of discharge equaling at least 14 times the employe's weekly benefit rate which would have been paid had the discharge not occurred. The employe must repay $7,332.00 to the Unemployment Reserve Fund.

For purposes of computing benefit entitlement, base period wages from work for the employer prior to the discharge shall be excluded from any computation of maximum benefit amount for this or any later claim. If the employe was also paid base period wages from work by other covered employers, the excluded wages shall be used to determine benefit eligibility. However, any benefits otherwise chargeable to a contribution employer's account shall be charged to the fund's balancing account.

Dated and mailed April 7, 2000
lloydca.urr : 105 : 3  MC 605.09

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner

NOTE: The commission conferred with the administrative law judge before determining to reverse the appeal tribunal decision. The commission's reversal is not based upon a differing credibility assessment from that made by the administrative law judge; rather the commission believes that the employe failed to keep to a minimum attendance failures not for valid reasons. For this reason, the commission disagrees with the administrative law judge's conclusion of no misconduct.

cc: ROBERT C TIBBITS
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