In the matter of the unemployment benefit claim of

BETTY J. WASHINGTON, Employee

Involving the account of

GARDNER BAKING COMPANY, Employer

A Department Deputy's Initial Determination held that in week 27 of 1990, the employe was discharged for misconduct connected with her work. As a result, benefits were denied.

The employe timely appealed the Initial Determination, and a hearing was held on August 22, 1990 before Administrative Law Judge James R. Sturm, acting as an Appeal Tribunal of the Wisconsin Department of Industry, Labor and Human Relations. The Appeal Tribunal Decision, issued on August 27, 1990, affirmed the Initial Determination and found the employe ineligible.

The employe timely petitioned for review by the Wisconsin Labor and Industry Review Commission. Based on the evidence and applicable law, the Commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe has worked for the employer, a wholesale baker and baked goods distributor, since September 1987 as a full-time, 40 hour a week production worker. Her shift starts at 3 a.m.

On October 3, 1989, the employe received a verbal warning for being late to work on two occasions in the prior thirty days. On October 18, 1989 she received another verbal warning because, when she called in sick on October 8 and 17, 1989, she failed to call in within two hours prior to the start of her shift to report that she would be absent, as the employer's rule required. On November 2, 1989, she received a written warning because she reported late for work on November 1, 1989. On March 3, 1990, she received a written warning and was suspended from her employment for one day because she was late for work on March 1 and 3 of 1990.

On April 28, 1990, the employe was late for work and was discharged from her employment. On April 29, 1990, she filed a grievance challenging her termination. On April 30, 1990, the grievance was resolved by the employer's agreement to change the discharge to a suspension and to return the employe to work on May 1, 1990, on the condition that she be deemed to be on a "last and final chance" warning to correct attendance problems, with any violation of attendance policy within six months to result in termination.

On July 1, 1990 (week 27) , the employe notified the employer five minutes before the start of her shift that she was experiencing severe pains in her side and would not be able to report to work. On July 3, 1990 the employe was discharged from her employment for her late call-in on July 1 and her overall attendance record.

On July 5, 1990 the employe filed a grievance challenging her discharge, asserting that she had been sick and had a doctor's excuse for her absence on July 1 . In an initial response to the grievance, the employer took the position that the termination would stand. However, by an agreement entered into on July 31 , 1990, between the employe, the employe's union, and the employer, the employer agreed to reinstate the employe effective July 31, 1990 with her period of time off to be considered as having been a suspension without pay, and with the understanding that she would be subject to immediate discharge without recourse for any infraction of the attendance policy in the next six months.

Although the employe was initially discharged on July 3, 1990, the subsequent agreement of the parties to reemploy her effective July 31, 1990 and to recharacterize her absence from work in July of 1990 as having been a suspension, alters the nature of what occurred. In legal contemplation, the employe was suspended from her employment from July 1, 1990 through July 31, 1990. The issue for decision is therefore whether the employe's suspension from her employment was for misconduct or other good cause, within the meaning of section 108.0)4 (6), Stats.

The employe was absent and late from work on numerous occasions. She received written warnings from the employer notifying her that subsequent tardiness or absences could result in her discharge. After one discharge in April 1990, was rescinded and transformed into a suspension, the employe was warned that any subsequent violation of the employer's attendance policy would result in her termination. Although the employer's policy requiring two hours' notice prior to an absence or a tardiness is substantially greater than that which many employers impose, it is a reasonable requirement given the nature of the employer's business, as a wholesale bakery. The employe's persistent failure to appear at work on time, was disruptive to the employer's operations. Even if her failure to appear at work on time on July 1, 1990, and her failure to timely notify the employer of her inability to appear at work on time on that day, was the result of medical problems beyond the employe's immediate control, nevertheless her entire record of absenteeism and tardiness was such at that point as to constitute good cause for suspension.

The Commission therefore finds that in weeks 27 through 31 of 1990, the employe's work was suspended by the employer for misconduct or other good cause connected with the employe's work, within the meaning of section 108.014 (6) of the statutes.

The Appeal Tribunal Decision is modified to conform with the foregoing and, as modified, is affirmed. Accordingly, the employe is ineligible to receive benefits until five weeks have elapsed since the end of the week in which the suspension occurred or until the suspension was terminated, whichever occurred first.

Dated and mailed October 15, 1990
110 - CD6315  MC 676.2  MC 676.1

/s/ Kevin C. Potter, Chairman

/s/ Carl W. Thompson, Commissioner

Pamela I. Anderson, Commissioner

NOTE: The Commission did not disagree with the result arrived at by the Administrative Law Judge in this case, that the employe was disqualified from receiving benefits during the weeks in July 1990 in which she was unemployed. The Commission has modified the rationale upon which this result is based because it believes that the Administrative Law Judge erred as a matter of law in insisting that the separation in this case be treated as a discharge. The Commission believes that where an employe has been discharged, and evidence is presented that by the time of the hearing there has been a voluntary agreement between the employe, the employe's union and the employer, that the employe will be reemployed and that the absence from employment in the interim will be characterized as a suspension, the discharge has effectively been rescinded and, in legal contemplation, what has occurred is a disciplinary suspension.

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