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

SCOTT V MILLER, Employe

STELLA FOODS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 95402975GB

An administrative law judge(ALJ) for the Division of Unemployment Insurance of the Department of Industry, Labor and Human Relations 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 the applicable law, records and evidence in this case, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked as a machine operator for approximately six years for the employer, a cheese manufacturer. His last day of work was on or about October 6, 1995 (week 40).

The employer has a no-fault attendance policy which allows five free absences per year after which time every absence, except those specified under the employer's policy, results in disciplinary action. The employe was absent on February 11, March 10, April 7, June 7, and June 27, 1994, due to illness. He received a verbal warning for his absences on July 7, 1994. The employe was late for work on July 13, 1994. The employe left work early on August 24, 1994, due to a medical emergency involving his mother. The employe left early on November 1, 1994, due to illness. On November 10, 1994, the employe received a verbal warning. The employe was absent on November 15, November 16, December 17, and December 29, 1994, due to illness. The employe received a written warning on January 6, 1995. The employe was late on January 3, 1995, because of car problems. The employe was absent on March 13, 1995 because his father had a heart attack. The employe received a written warning on March 27, 1995. The employe left work early on April 13, 1995, for unknown personal reasons. The employe left work early due to illness on June 2 and August 25, 1995. The employe received a written warning on September 1, 1995. The employe left work early on October 6, 1995, for a medical appointment.

The employe became a "born-again" Christian in March of 1995, at which time he became affiliated with the Assembly of God Church. The employe's church discouraged, but did not prohibit, employment-related activities on Sunday. In approximately the beginning of September of 1995, the employer instituted a 7-day- per-week work schedule. The employe was required to work approximately three Sundays per month. The employe initially requested time off to attend church services and his request was granted. Thereafter, the employe came to the conclusion that "God blesses those who keep the Sabbath" and refused to work Sundays at all.

The employer had in effect during all relevant periods a collective bargaining agreement. That agreement provides that "those employes desiring to attend church services on Sunday mornings may attend services at their respective churches at the hours specified by their Team Leader/Coordinator. Such absences will be without pay."

The employe was scheduled to work on Sunday, September 24. He did not appear for work. The employer did not assess the employe points for that absence because the employer's religious accommodation policy had not been discussed with the employe. By letter dated September 27, 1995, the employe notified the employer that he could not work Sunday due to his religious beliefs. The employer's plant manager and the employer's operations manager met with the employe on or about September 28, 1995, to discuss the employer's religious accommodation policy. The employe was given permission to leave his shift for a reasonable time period to attend his worship services but was not allowed to be absent the entire work day. He could have the entire day off only if he arranged for a qualified volunteer substitute to replace him.

The employe was absent on Sunday, October 22, 1995, to observe the Sabbath. His employment was suspended for three days due to his attendance. The employe attempted to find qualified volunteers to work his schedule. The employe was successful in finding a volunteer to work for him on Sunday, November 5. However, his supervisor notified him that the employer did not consider the substitute to be qualified to perform his job duties. The employe submitted a written notice to his supervisor dated November 3, 1995, at 11:15 a.m., that he had made every attempt to find a replacement without success and that he would not report to work on November 5 due to his religious beliefs. The substitute reported to work on November 5 but was not allowed to substitute for the employe for the entire day. Deeming the substitute unqualified, the supervisor assumed the employe's job duties for most of his shift. The employe was counseled on November 6 by the operations manager for having arranged for a non-qualified substitute. The employe responded in a letter dated November 10, 1995, that he believed the substitute was qualified, or at least would have been had the employe received ample notice that the substitute needed additional training.

The employe made daily attempts to find qualified substitutes for his subsequent Sunday shifts. The employe was not successful. Pursuant to the employer's September 28, 1995, letter, the employer agreed to post a notice seeking a voluntary replacement after the employe's efforts had been unsuccessful. The notice did not lead to any volunteers to work the employe's Sunday shift.

The employe did not work on Sunday, November 12, 1995. As a result of his failure to work on that date, and his prior attendance, he had reached the maximum points allowed under the employer's no fault attendance policy and was discharged. A peer review committee later reviewed the employe's position and determined that the discharge would stand.

The issue to be decided is whether the employe's actions, which led to his discharge, constituted 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 employer's no-fault attendance policy was reasonable. However, mere absences, no matter how frequent, do not rise to the level of misconduct connected with a worker's employment unless those absences are for invalid reasons or without proper notice to the employer. The only absence the employer ever alleged was without notice was the initial September 24, 1995, absence when the employe was first absent to observe the Sabbath. However, the employer did not count that absence or the failure to give notice in discharging the employe. There is no allegation that any other absence by the employe was without notice or that a lack of notice contributed to the employe's point accumulation.

The next question is whether the employe was absent for generally valid reasons. Other than the employe's absences on Sunday, the only two dates for which a valid reason has not been established, because no precise reason was given, were July 13, 1994, when the employe was late and April 13, 1995, when he left work early. The remainder of the employe's absences were due to his own illness or the illness of an immediate family member i.e., his father or his mother. The employe was also absent for medical appointments and on one occasion because of car problems. Absences due to the employe's illness or the illness of an immediate family member have almost uniformly been held by the courts and commission to constitute valid reasons for absence. Infrequent absences due to transportation problems have likewise been held to constitute valid reasons for absence.

The last question is whether the employe's absences to observe the Sabbath were for valid reasons. The evidence establishes that the employe was sincere in his belief that he should refrain from working on the Sabbath due to reasons rooted in religion. Given these facts, the commission finds that the employe was in fact absent for valid reasons.

The commission's decision does not rely on whether the employer reasonably accommodated the employe's religious beliefs nor whether the employer acted reasonably in discharging the employe. The commission's decision in this matter simply recognizes that this State may not deny unemployment compensation benefits to a worker who has lost his or her employment due to sincere beliefs grounded in religion. In this regard, the commission's decision is consistent with Supreme Court decisions finding that States may not deny unemployment compensation to individuals who lose their employment due to sincere beliefs rooted in religion as such denial would violate the Free Exercise Clause of the First Amendment. See Sherbert v. Verner, et al., Members of South Carolina Employment Security Commission, et al., 374 U.S. 398 (1963) (State could not constitutionally apply the eligibility provisions of its unemployment compensation program so as to constrain a worker to abandon his religious convictions respecting the day of rest.); Thomas v. Review Board of the Indiana Employment Security Division, et. al., 450 U.S. 707 (1981)(State's refusal to award unemployment compensation benefits to a worker who terminated his job because his religious believes forbade participation in the production of armaments violated the First Amendment right to free exercise.); Hobbie v. Unemployment Compensation Appeals Comm'n of Florida, 480 U.S. 136 (1987) (State's denial of unemployment compensation benefits to an employe discharged for her refusal to work on her Sabbath because of religious convictions adopted subsequent to employment violated the Free Exercise Clause); Frazee v. Illinois Department of Employment Security et al., 489 U.S. 829 (1989) (State could not deny unemployment benefits to an individual who refused a position that required the individual to work on Sundays on the grounds that the refusal was based on the individual's personal professed religious belief as "a Christian" and not a tenet or dogma of an established religious sect.)

The commission therefore finds that in week 46 of 1995, the employe was discharged but that the discharge was not for misconduct connected with his work, within the meaning of sec. 108.04(5), Stats.

DECISION

The decision of the administrative law judge is modified and affirmed. Accordingly, the employe is eligible for unemployment benefits as of week 46 of 1995, if he is otherwise qualified.

Dated and mailed: May 24, 1996
millesc.urr : 132 : 1 MC 605 MC 688

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ David B. Falstad, Commissioner

cc: STELLA FOODS INC

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