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

LORI A HAINZ, Employee

NELSON INDUSTRIES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00003095MD

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 six months as a production worker for a manufacturing business. She was discharged for poor attendance on May 19, 2000 (week 21) when she called in to report she would be tardy.

The employer had a no fault attendance policy. Under this policy, new employees receive 24 hours worth of absence without penalty. After an additional 30 hours, an employee receives a warning and notice that any additional missed time in a three month period would result in a second warning. After the second warning, the employee is warned any additional missed time could result in discharge. The only absences which are not part of this program are FMLA, leaves of absence and family funerals. The employee did not receive or see a copy of this policy until after she had already received the first warning on May 12, 2000.

The employe was absent frequently during her employment, most often due to illness. She had a doctor's excuse for most of those absences. On two occasions she was hospitalized, once with pneumonia and once for surgery. She was granted leaves of absence for both of those hospitalizations but absences for the same conditions prior to actually being hospitalized were not always covered by these leaves of absence. In addition to the illness absences, the employe left 1 « hours early one occasion after she was granted permission to attend a school program, left early with permission to go to a Packer game, and was tardy three times with notice to the employer. The employee was unaware that her absences due to illness or with prior supervisory approval would count against her for attendance purposes until she received her first warning on May 12. This was the first notice she received that her job was in jeopardy. She received a second warning after she was tardy on May 13. She was discharged when she called in to say she would be late on May 19, 2000.

In determining whether an employee's absenteeism constitutes misconduct connected with the employment, the courts have held that an employee's intent and attitude are the most important factors. Accordingly, misconduct will not be found if a worker's absences are for valid reasons and are promptly reported to the employer. P.P.G. Industries v. DILHR & Reynolds, Dane Co.Cir. Ct., Case No. 161-399, February 7, 1979.

The employee did not have advance notice of the employer's no-fault attendance plan. By the time she had received her first notice that her job was in jeopardy, she could only accumulate two more occurrences of any type, for any reason, valid or invalid, for the next three months. If she had been aware that the employer intended to hold all these absences against her from the beginning, without regard to whether she was ill or had received advanced permission from her supervisor, she might have avoided some of the approved absences. The commission also finds that her attendance record as a whole consist largely of absences for valid reasons and with notice. Her attendance does not demonstrate a disregard for the employer's interests. She was to some extent blameworthy for the three tardies but those instances even taken together do not amount to misconduct.

Therefore, the commission finds that in week 21 of 2000, the employee was discharged but not for misconduct connected with her work for the employer, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 21 of 2000 if otherwise qualified.

Dated and mailed October 3, 2000
hainzlo.urr : 178 : 3   MC 688  MC 605.09

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission did not consult with the ALJ prior to reversing since witness credibility was not at issue. The ALJ found that the employe had knowledge of the employer's expectations of her from the warnings she had received and therefore her tardies amounted to misconduct. The commission considers that insufficient notice to the employee of the employer's intentions to hold most of her legitimate absences against her. Therefore, the commission finds no intent to commit misconduct.

cc:
FLEETGUARD NELSON DIVISION
NEILLSVILLE WEST

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