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

GREGORY W STEAGALL, Employe

C&D TECHNOLOGIES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00602558MW

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 manufacturer of batteries, for 27 years as a pasting machine operator. His last day of work was January 28, 2000 and he was discharged on February 1, 2000 (week 6).

The employer has a no-fault attendance policy under which points in varying numbers are assigned for each attendance violation. An employe who accumulates 24 points in a year's time is subject to discharge. Under the employer's policy, extended absences with a medical excuse are excused, but isolated sick days are not excused, even with a doctor's excuse. However, employes are entitled to use five days of their vacation leave to cover sick time.

On February 15, 1999 the employe missed work due to illness and was assessed two points. He was absent again on April 7, also due to illness, and was assessed two more points. On April 15 the employe received a final warning for poor attendance.

On August 14, 1999, the employe missed work without notice and was assessed three points. He then missed six work days due to illness between October 18 and November 5, and received two points for each day of absence. On November 4 the employe was issued an in-house suspension for excessive absenteeism. He was later informed that his next absence would result in discharge.

On Friday, January 7, 2000, the employe missed work in order to attend a funeral in Sheboygan Falls. This absence was not counted against the employe because he used one of his vacation days. The employe remained out of town the following day and, based upon an erroneous belief that he was not required to work on the Saturday following a vacation day, missed work on January 8 without notice to the employer.

The employer requires workers to call in half an hour before the start of the shift to report an absence or tardy arrival. The employe's shift starts at 7:00 a.m. On January 31, 2000 the employe called in at 6:36 a.m. to report that he would be absent due to illness.

On February 1, 2000 (week 6), the employe was discharged for failing to report his last absence in a timely manner, after having accrued 24 points in a 12-month period. 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 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."

While the employe missed a substantial amount of work in his last year of employment, frequent absences do not, in and of themselves, amount to misconduct. Here, all but two of the employe's absences were due to illness and with notice to the employer. Although the employe did fail to report for work or notify the employer of his absence on two occasions, the latter instance was with mitigating circumstances, in that the employe believed he was not required to work on the Saturday following a vacation day. Finally, on his last day of work, the employe provided notice that he would be missing work due to illness, but did so 24 minutes before the start of his shift rather than the requisite 30 minutes. The commission is unpersuaded that these failures on the employe's part, taken separately or together, are sufficiently egregious as to warrant a finding of misconduct.

The commission, therefore, finds that in week 6 of 2000, 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 6 of 2000, provided he is otherwise qualified. There is no overpayment as a result of this decision.

Dated and mailed July 13, 2000
steaggr.urr : 164 : 5  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 did not form any specific impressions of the employe's credibility, and the commission does not reverse any credibility determination made by the administrative law judge.

 

PAMELA I. ANDERSON, COMMISSIONER (Dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. The employer had an attendance policy which allowed an employe to use 5 sick/vacation days in a year and not receive points for the absence under the employer's no fault policy. This employe had numerous final warnings over the years for attendance. The employe was terminated January 3, 1998 and then signed a last chance agreement which rescinded the termination on February 18, 1998. The employer required the employe to get permission to take a regular vacation day but he could call in to receive a sick/vacation day until the five days were used up for the year.

The employe took sick/vacation days from January 3-5, 2000. He requested a regular vacation day for January 7 but it was denied because there was a lot of work. The employe testified "They wouldn't grant me vacation so I had to use a sick/vacation day. It was excused." While the employe argued at the hearing that he did not need to work a Saturday after a vacation day, it is not credible he believed he need not call because he did not have a vacation day. He also was not supported by the union in his grievance of his discharge. The employe was warned on January 11, 2000 that his next absence would result in termination. On Monday January 31, 2000 the employe called in late to say he would not be in. He testified he had flu and his wife had had an asthma attack that morning. He called late because he was deciding whether to go in or not. He did not pursue Family Medical Leave.

The employe was allowed to miss 17 days before he was discharged. While he got no points for the sick/vacation days, he got points for the other days. Based on the employe's overall record, he needed to be careful about unnecessary absences. He missed August 14, 1999 and January 8, 2000 and was a no call no show. He received 6 points for those absences. The employe usually said he was ill but often added the reason was flu.

For these reasons, I would affirm the administrative law judge's decision.

___________________________________________
Pamela I. Anderson, Commissioner

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