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


DAVON R OLSON, Employe

FAMILY DOLLAR STORES OF WISCONSIN INC NO 882, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99201437EC


On October 1, 1999, the Department of Workforce Development issued an initial determination which held that the employe's discharge was not for misconduct connected with her employment. The employer filed a timely request for hearing on the adverse determination, and hearing was held on November 3, 1999 in Eau Claire, Wisconsin before a department administrative law judge. On November 12, 1999, the administrative law judge issued an appeal tribunal decision reversing the initial determination. The employe filed a timely petition for commission review of the adverse appeal tribunal decision; on January 27, 2000, the commission issued a decision affirming the appeal tribunal decision.

By May 4, 2000 Order, the commission set aside its January 27, 2000 decision and remanded the matter for further hearing, which was held on May 31, 2000. The matter is again before the commission, and now is ready for disposition.

Based upon the applicable law and the records and other evidence in the case, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe in this case worked approximately four months as a cashier for the employer, a retail concern. The employer discharged her on August 30, 1999 for nine instances of tardiness and four absences. The record indicates that the employe had valid reasons for her absences and that, in fact, the employe was not tardy as alleged by the employe's supervisor. The commission therefore reverses the appeal tribunal decision in this case.

The employe's alleged attendance failures are alleged as follows:

Date

Attendance Failure
5/12
5/16
5/29
6/18
6/25
6/26
6/27
7/3
7/9
7/24
8/2
8/20
8/30
Absent
Absent
12 minutes late
10 minutes late
9 minutes late
5 minutes late
Absent
8 minutes late
8 minutes late
12 minutes late
8 minutes late
11 minutes late
Absent; discharged

Although the employe's time cards indicated the above instances of tardiness, in fact the employe was not tardy on those occasions. There were instances when the door was locked when the employe arrived at work, and the employe would have to pound on the door in order to be let in. On such occasions, the employe cannot be said to have been tardy. There were instances when the employe would report to work, and the employe's supervisor would immediately leave to make a run to the bank, for example. When the supervisor would leave right away, the employe would have to immediately begin dealing with customers in the store and would not be able to absent herself from the sales area in order to clock in right away. There were instances, finally, in which the employe's supervisor would begin a conversation with the employe, such that the employe again would not be able to clock in immediately upon her arrival at the workplace. Again, the employe cannot be said to have been tardy in such a circumstance.

The employe was absent on four occasions. One absence was due to a visit to the hospital emergency room for a foot injury. On two occasions, the employe switched shifts with a co-worker; there is no evidence in the record to suggest that that was improper. Indeed, the employe's supervisor conceded that the employer's records were "definitely up to par." On one occasion, finally, the employe was not scheduled to work because she had to a tutoring class to go to, of which the employe's supervisor was aware. Of the four alleged absences, therefore, the employe is possibly culpable on only two of them.

Misconduct for unemployment insurance purposes is the intentional and substantial disregard by an employe of standards an employer reasonably may expect of its employes. The employe's attendance record in this case comes nowhere close to that standard. The commission therefore finds that, in week 36 of 1999, the employe was discharged but not for misconduct connected with her employment, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The appeal tribunal decision in this matter is reversed. Accordingly, the employe is eligible for unemployment insurance beginning in week 36 of 1999, if she is otherwise qualified.

Dated and mailed July 19, 2000
olsonda.urr : 105 : 1 MC 605.09

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

NOTE: The commission did not confer with the administrative law judge before determining to reverse the appeal tribunal decision in this case. Although the administrative law judge had found the employe's supervisor to have been more credible than the employe at the first hearing, that assessment was made without the benefit of the employer's evidence at the remand hearing. The employer's witness at the remand hearing is a store manager. He testified that the employe's supervisor had "blamed a lot of the shortcomings at the store, which should have landed squarely on her shoulders, on other employes including Ms. Olson (the employe)." The manager also conceded that the employe's supervisor had blamed the employe for a lot of the things going on in the store and that the employe had been let go in order to save the supervisor's butt. Finally, the employer's representative at the hearing indicated that the employe's supervisor had waited several days after the discharge of the employe to prepare a separation form for the employe (contrary to the employer's policy that such forms are to be prepared the day of discharge).

Based upon the above factors, the commission has overturned the administrative law judge's credibility assessment in this case. The dissent asserts that the store manager's testimony is worth nothing, since he only started at the beginning of April, 2000. What the dissent omits, though, is significant. That is that the store manager, while not connected to the employe's store, yet had been connected with the employer's Hayward store since November of 1998. In addition, he had interviewed the employe's supervisor just before the unemployment insurance hearing in this case, on an unrelated matter. Further, he had read the employer's files regarding the issues for the unemployment insurance case. Because of these factors, the majority believes the manager's testimony was worth more than the "nothing" the dissent asserts it was worth.

More importantly, the majority sees no basis in the record to find the supervisor more credible than the employe. The supervisor conceded that there had been occasions on which the employe began working before punching in. One of the incidents for which the employe was discharged, concerned whether the employe was scheduled to work on a certain day. The employe insisted consistently throughout, that she was not. The employe's supervisor believed she was scheduled to work that day, but that same supervisor had conceded that her own record keeping was not what it should be. Even the dissent discusses the supervisor's shortcomings regarding record keeping. Finally, the employer's witness at the remand hearing expressly testified that the supervisor had blamed the employe for many of the shortcomings in the supervisor's store and that the employe had been let go in order to save the supervisor's job. Given these factors against the supervisor, and the complete lack of credibility factors against the employe, a finding that the supervisor was more credible than the employe is remarkable.

cc:
FAMILY DOLLAR STORE
ATTN MANAGER


PAMELA I. ANDERSON, COMMISSIONER (dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. The case was remanded by the majority after the employe requested reconsideration. The employe alleged that she had newly discovered evidence. She indicated that her former supervisor, Linda Flones, answered the employe's question of why they lied at the hearing by saying that Don her boss was standing behind her and coaching her in the telephone hearing. The remand order was intended to allow the employe an opportunity to show that Flones had lied at the first hearing. Flones did not appear.

At the original hearing the employe testified "Frequently, when I arrived for work at 8:00, the door was not open and Ms. Flones was doing deposits. I pounded on the door to be let in. We'd always start talking. I did not always punch in right away when I arrived. We were just opening the store." Ms. Flones testified at the first hearing, "Periodically the employe punched in late because she was talking to me. Usually, I told her to clock in before we started talking."

At the remand hearing the employer was represented by a new store manager who started at the beginning of April, 2000. He never worked with either the employe or Ms. Flones. He testified, "I am not entirely familiar with Ms. Olson, the employe. I just have her file in front of me and I can only tell you what is written on her separation notice." Thus, it is that the store manager's testimony with regard to Olson is worth nothing. An attendance problem by Ms. Olson would do nothing shift the shortcomings in the store away from Flones.

The store manager also testified that Flones was "discharged due to misbehavior, failure to meet the requirements of the job, the company believed but could never prove that she was taking merchandise from the store but that was written in her file." He also stated "In an effort to, my guess, either delay the inevitable or to try to save her job she blamed a lot of the short comings at the store, which should have landed squarely on her shoulders, on other employes including Ms. Olson." All of that is hearsay and speculation. Ms. Olson was fired for attendance violations which do nothing to get Flones off any hook. The fact that the personal action form with Olson's discharge was not written until four days late says nothing about the reason for Olson's discharge but only that Flones had some shortcomings about timely reports.

In reviewing the testimony, I see nothing that is newly discovered testimony or anything that even indicates that Flones testimony was all lies as the employe would have us believe. Flones no longer for the employer at the time of the second hearing so it was the employe's burden to have her appear.

I would side with the administrative law judge who heard the testimony of the employe and Flones. I would affirm the administrative law judge's decision.

______________________________________
Pamela I. Anderson, Commissioner


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