STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)
JASON M SCHUEBEL, Employe
BAKKE ELECTRIC CO INC, Employer
UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99608619RC
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 makes the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The employe worked for the employer until late 1998. He worked as a journeyman-electrician for a subsequent, non-subject employer for about four weeks. His last day of work was November 2, 1999 (week 45).
The issue which must be determined is whether the employe's discharge was for misconduct connected with his work.
In Boynton Cab Co. v. Neubeck & Ind. Comm., 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 as a result of his attendance. The non-subject employer does not maintain records of whether workers call in their absences. In addition, it was not established that there was always somebody available to answer phone calls. During week ending October 24, 1999, the employe was absent on Monday, Wednesday and Friday, because he was ill. He called in on the Wednesday but nobody answered the phone. The employe then discussed this with his foreman who indicated that it was no big deal. The foreman indicated that as long as the employe tried calling it, this would be sufficient. He was never told that there was an alternative location or person he could call if nobody answered the subsequent employer's phone. The employe was not warned or reprimanded for his absences.
The employe was scheduled to work Wednesday, Thursday and Friday of the week ending October 31. He was not scheduled to work on Saturday, which was an optional day. He called in on Wednesday to report that he would be absent. The employe went to Texas to take care of matters pertaining to his divorce. He did not work on Thursday or Friday of that week.
The employe only worked for the subsequent employer for four weeks, and had extremely poor attendance. However, he was ill or had to attend to important personal business in another state. Thus he had valid reasons for his absence. Under the law, absences for valid reasons do not generally amount to misconduct. The employe was never warned about his attendance by the employer. The employe attempted to call in some of his absences but nobody answered the phone. The employe asked his supervisor what he should do about calling in and was informed it was "no big deal." The employer presented no evidence to demonstrate that the employe was warned about his absences. In addition, the employe asked his supervisor what to do because he called in and could not reach anybody. The supervisor essentially told the employe not to worry about it. Certainly deliberate failure to call in, even when absences are for valid reasons, can be misconduct. However, in this case it was undisputed that the employe attempted to call in on four days but was unable to reach anyone. He asked about alternatives but was not given any. The employer did not refute this testimony and therefore failed to establish that the employe was discharged for misconduct. The employe was absent for valid reasons, and attempted to notify the subsequent employer. The subsequent employer may have made a valid business decision when it decided to discharge the employe, however, under the circumstances, the commission cannot conclude that the employe's discharge was for misconduct connected with his work.
The commission therefore concludes that in week 45 of 1999, the employe was discharged but that his discharge was not for misconduct connected with his work for the subsequent employer, 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 beginning in week 45 of 1999, if he is otherwise qualified.
Dated and mailed April 26, 2000
schueja.urr : 145 : 5 MC 605.05 MC 605.09
/s/ David B. Falstad, Chairman
/s/ James A. Rutkowski, Commissioner
MEMORANDUM OPINION
The commission discussed witness credibility and demeanor with the ALJ, however, the ALJ did not have any specific information on the employe's credibility. He did note that the employe visited his mother on the way home from Texas, making the ALJ think that the Texas trip had a dual purpose. However, the commission notes that it took the employe 24 hours to reach Texas, and presumably 24 hours to return. He also had to spend time trying to resolve problems relating to his divorce. It is doubtful that the employe could have returned to Wisconsin in time to work on Friday, the third day he missed, even if he had not stopped to visit his mother in Oklahoma. In addition, the subsequent employer never warned the employe about his attendance, nor did it appear that this employer even had an attendance policy.
PAMELA I. ANDERSON, COMMISSIONER (Dissenting):
I am unable to agree with the result reached by the majority herein and I dissent. The employe worked for the employer for less than a month. He was absent for four days in a row without notice to the employer and he was discharged. The employe had been absent before for a sinus infection for three nonconsecutive days.
The employe left Wisconsin to try to correct a problem with his divorce action in Texas. He had believed his soon to be ex-wife would not lie to him so he signed papers that required him to pay all the bills. He drove to Texas rather than calling to see if he could change things. While he had been represented when the divorce action started in Wisconsin, that case was dismissed and he had no attorney in Texas. The employe testified he tried calling once before he left but did not get an answer. The employe did not try to call again.
The employe testified "In regard to whether I came back home as soon as I learned I was unsuccessful, my mother lives in Tulsa. I stopped there on the way back. I spent the rest of the weekend visiting my mother. I left Tulsa Sunday night." The employe never asked for permission to be absent to take care of his legal problems. The employe did not file a grievance with the union.
Unlike the majority, I do not find that his last absences were for a valid reason. Unlike an illness, the employe did not have a specific time when he needed to go to Texas and without legal assistance the employe could not possibly have succeeded in resolving his problem. He got into his problem by trusting his soon to be ex- wife and there was no reason to believe she would change her mind if he went to Texas.
For these reasons, I agree with the administrative law judge and would find that the employe was discharged for misconduct connected with his employment.
______________________________________
Pamela I. Anderson, Commissioner
cc: GIBSON
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