Summary
affirming a LIRC decision that an employee did not engage in misconduct when she did not report during an absence as required by the employer's rule
Summary of this case from FLEET OF MONROE v. LIRCOpinion
January 9, 1964 —
February 4, 1964.
APPEAL from a judgment of the circuit court for Dane county: RICHARD W. BARDWELL, Circuit Judge. Affirmed.
On March 13, 1961, Lorraine E. St. John was involved in an automobile accident while on her way to work as a production employee at the Milwaukee Transformer Company. She continued on to work on the first shift. After several hours she felt ill, and asked her foreman to excuse her from work, explaining the circumstances of the accident. The foreman excused her.
On March 14th she was unable to report to work because of injuries sustained in the accident. She had been treated at an emergency hospital on March 13th and the physicians in attendance had advised her to rest for several days. She directed her fourteen-year-old son to call the company early in the morning; he was to explain that she was unable to work because of her injuries. The boy phoned and spoke to a woman in the company office. He stated that he was calling for his mother, and apprised her that, "She [Mrs. St. John] won't be in because she's under doctor's care." The company representative replied, in effect, "Well, okay, as long as when she comes back to work to bring a doctor's excuse."
Later, on March 14th, Mrs. St. John visited her personal physician and he told her not to return to work until he gave his approval.
On March 15th through 17th, the son again called the company office at about 8 in the morning and informed a member of the office staff that his mother would not be in to work for that day because she was under physician's care. On these days the company representative made no response to the boy's message.
On March 15th, Mrs. St. John's husband went to the company office to pick up her check for the work period March 6th through March 10th.
On March 22d, he again appeared in the company office to pick up his wife's check for the time worked on March 13th. The commission found that on March 22d, in response to an inquiry by Audrey Styne, the company office manager, as to his wife's health, he replied that she was still under doctor's care. The company representative responded in effect, "Well, when she's ready to come back to work, to come in the office."
From March 22d until April 27th, Mrs. St. John was under physician's care as an ambulatory outpatient. During this period she did not communicate with the company either directly or through members of her family.
On April 27th, her physician told her that she could return to work. She called the company and told a member of the office staff that she was ready to resume work on May 1st. The company representative informed her that she would be notified by mail when she was to return. He said that it was likely that the company did not need her anymore.
On April 27th, Mrs. St. John received a written letter from the company. The subject of the letter was: "Your Request to Return to Work." The contents were:
"Dear Madam:
"This is to advise that your subject request is hereby denied."
It was signed by the company president.
In July, 1961, Mrs. St. John filed a claim for unemployment benefits. An examiner made a preliminary determination that she had been discharged for "misconduct" connected with employment and disallowed the claim, citing sec. 108.04 (7) (a), Stats., relating to disqualification for voluntary termination of employment, as legal basis for his decision. The controversy was taken to the appeal tribunal, and a full hearing was held before an examiner.
"108.04 (7) Voluntary termination of employment. (a) If an employe terminates his employment with an employing unit, he shall be ineligible for any benefits based on such employment, and ineligible for benefits based on other previous employment for the week of termination and the 4 next following weeks, except as hereinafter provided."
The company argued that prior to March 13th, Mrs. St. John had been absent twenty-six full days during an eight-month period of employment, and had been tardy on numerous occasions. It contended that this conduct in and of itself constituted "misconduct" within the meaning of sec. 108.04 (5), stats. Moreover, the company argued that Mrs. John's failure to communicate with any of its representatives from March 22d until April 27th constituted a clear violation of reasonable company work rules relating to notice of absence and to provisions of the collective agreement relating to such notice and taking a formal leave of absence. The pertinent work rule provided:
"108.04 (5) Discharge for misconduct. An employe's eligibility, for benefits based on those credit weeks then accrued with respect to an employing unit, shall be barred for any week of unemployment completed after he has been discharged by the employing unit for misconduct connected with his employment; provided, moreover, that such employe shall be deemed ineligible for benefits (from other previous employer accounts) for the week in which such discharge occurred and for the 3 next following weeks."
"Permission must be obtained from your foreman when it is necessary for you to be away from work. H, for any reason, you are unable to report for work, CALL THE OFFICE, HOPKINS 6-5532, and state your reason for absence and the date you will return to work. This information will be made a part of your personnel record. Employees who habitually absent themselves or report late without permission or reasonable causes, are subject to dismissal. An absence of 3 days without notification will institute an automatic discharge. EMPLOYEES MUST REPORT IN BY PHONE EVERY DAY OF ABSENCE PHYSICALLY UNABLE TO DO SO." (Emphasis added.)
Sec. 5.02 of the collective agreement provided:
"Seniority shall cease upon one of the following events:
". . .
"(D) Absence from work for three (3) working days without notification to the Personnel Department. This shall not apply to an employee who for a good cause is unable to give such notice."
Sec. 5.08 of the collective agreement provided:
"The Company shall maintain a consistent policy in granting leaves of absence and shall grant leaves of absence for good cause, such as:
"(A) Illness
"(B) Accidents
"(C) Illness or accidents in the immediate family."
The company contended that Mrs. St. John's thirty-six-day absence with no communications after March 22d was a clear violation of these reasonable work rules and was therefore "misconduct" within the meaning of sec. 108.04 (5), Stats.
The examiner concluded that Mrs. St. John's conduct did not evince wilful, intentional, or substantial disregard of the employer's interest, and therefore, could not be deemed misconduct. He allowed benefits.
The employer appealed to the commission, which sustained the examiner, construing the three-day work rule and seniority rule to require the employee to give a single notice of absence within three days after the last workday, rather than a notice every three days during the period of absence, however extended.
The commission read the leave-of-absence provision to be silent as to the circumstances in which it was operative. Mrs. St. John's communications through her family were deemed sufficient to apprise the company that she was absent for health reasons for an indeterminate period of time.
The commission also held that violation of the daily-call rule was not conduct "manifesting a wanton disregard of the standards of behavior which the employer had the right to expect . . ."
The circuit court sustained the commission, reading the one-day rule as not requiring a daily call because of the "unreasonableness" of such a construction, and further reasoning that even if the one-day rule was violated, such notice as she did communicate manifested sufficient concern for her employer's interest to negate a finding of misconduct. The court also held that the leave-of-absence provision was too vague to conclude that Mrs. St. John had in any way violated that rule.
The company appeals from the judgment confirming the award of the commission.
Other facts will be noted in the opinion.
For the appellant there were briefs and oral argument by Martin N. Sussman of Milwaukee.
For the respondent Industrial Commission there was a brief and oral argument by Arnold J. Spencer, chief counsel of the unemployment compensation division.
Three issues are raised on this appeal. They are:
1. Was Mrs. St. John's conduct "misconduct connected with . . . employment," within the meaning of sec. 108.04 (5), Stats.?
2. May the issue of whether Mrs. St. John's conduct was a voluntary termination of employment without good cause attributable to the employing unit or compelling personal reasons within the meaning of sec. 108.04 (7) (a), (b), and (e), Stats., be properly raised on this appeal, when the matter was not argued before the Industrial Commission or the circuit court and not passed upon by either body?
3. Assuming No. 2 is answered affirmatively, was Mrs. St. John's conduct a voluntary termination of employment within the meaning of sec. 108.04 (7) (a), (b), and (c), Stats.?
Issue No. 1. Was Mrs. St. John's conduct "misconduct connected with employment," within the meaning of sec. 108.04 (5), Stats.? To rule on whether Mrs. St. John's conduct was or was not "misconduct connected with [her] employment" within the meaning of sec. 108.04 (5), Stats., we must first define the extent of our review of the commission's determination that her conduct was not "misconduct" within the meaning of that statute.
The length of and reasons for Mrs. St. John's absence, the transactions between members of her family and company representatives, and the content of the company regulations and collective-agreement provisions, are findings of fact. It is well recognized that the court must accept the commission's determinations on such findings of fact if supported by credible evidence on the record as a whole.
Cooper's, Inc., v. Industrial Comm. (1962), 15 Wis.2d 589, 113 N.W.2d 425; Kohler Co. v. Industrial Comm. (1956), 272 Wis. 310, 75 N.W.2d 293; Marathon Electric Mfg. Corp. v. Industrial Comm. (1955), 269 Wis. 394, 69 N.W.2d 573.
On the other hand, any determination that Mrs. St. John's conduct was "misconduct" within the standards set forth under sec. 108.04 (5), Stats., is a conclusion of law. As we recently said:
"With respect to the second point of difference, insofar as a person's acts, or his intent in doing such acts, are questions of fact, where the evidence and reasonable inferences therefrom would support any one of two or more findings, a finding by the commission is conclusive.
"Here, however, the question is whether the facts fulfil a particular legal standard. This court determined that the term `misconduct connected with his employment' as used in sec. 108.04 (5), Stats., was an ambiguous term of doubtful meaning, and found it necessary to interpret it with the view of effecting the general purpose of the legislature.
"We consider that the difference between the appeal tribunal's evaluation of claimant's conduct and that of the commission is really a question of law, and the commission's determination does not bind us."
Cheese v. Industrial Comm. (1963), 21 Wis.2d 8, 15, 123 N.W.2d 553. See also Boynton Cab Co. v. Neubeck (1941), 237 Wis. 249, 257, 296 N.W. 636.
If it is true that a determination by the commission that there has been misconduct under the standard prescribed by the statute is a conclusion of law, it does not follow that every such determination is open to an independent redetermination by this court. If several rules, or several applications of a rule are equally consistent with the purpose of the statute, the court will accept the agency's formulation and application of the standard.
However, this court has the power in the first instance to determine whether the standard or policy choice used by the agency is consistent with the purpose of the statute. If upon consideration, we determine that a particular rule is consistent with legislative purpose, we must reject alternative rules regardless of whether they are "reasonable" or grounded in administrative expertise.
The general standard for determining whether an employee's course of conduct is misconduct is whether such behavior reflects an "intentional and substantial disregard of the employer's interests or the employee's duties."
Cheese v. Industrial Comm., supra, at page 17.
". . . 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."
Boynton Cab Co. v. Neubeck, supra, at page 260.
This standard must be interpreted and applied in the light of the basic social and economic objectives of unemployment compensation and the statutory mechanisms designed to achieve such objectives.
See sec. 108.01 (1), Stats.
The fundamental objectives of unemployment compensation are to mitigate economic loss to a worker and his family who is committed to the labor market, but is unable to find work because the economy has not provided enough jobs; to sustain general purchasing power by providing a built-in brake on a recession thus serving the interests of the economy at large.
When determining whether a worker's conduct is "misconduct" which will disqualify him from the benefits of the program, the employee's behavior must be considered as an intentional and unreasonable-interference with the employer's interest.
In considering whether a breach of company work rules or collective-agreement provisions is misconduct, the "reasonableness" of the company rule must be assessed in light of the purpose of unemployment compensation rather than solely in terms of efficient industrial relations. We are less concerned with the "reasonableness" of the rule from the point of view of labor-management relations, than with the "unreasonableness" of the conduct of the employee in breach of the rule. The unemployment compensation statute is not a "little" labor relations law. The critical question is whether Mrs. St. John's conduct was an intentional and unreasonable interference. with her employer's interest, regardless of what construction was put on the rules or the reasonableness of those rules.
Gregory v. Anderson (1961), 14 Wis.2d 130, 109 N.W.2d 675.
Cheese v. Industrial Comm., supra.
Therefore, it was unnecessary for either the commission or the court to construe the work rules and collective-agreement provisions in the fashion of an arbitrator or a court deciding a reinstatement case. Assuming that the one-day rule required daily call-ins, the three-day rule required a call every three days, regardless of the duration of the absence, and the leave-of-absence provision was effective if the employee was to be absent for a "reasonably long duration," Mrs. St. John's conduct did not manifest such conscious disregard of her employer's interest as to constitute misconduct connected with employment.
Widuk v. John Oster Mfg. Co. (1962), 17 Wis.2d 367, 117 N.W.2d 245;breach of provision of collective agreement requiring notice after two-day absence held to be sufficient ground to bar reinstatement.
The commission found that her absences prior to March 13, 1961, were caused by ill health. On each occasion she gave the company adequate notice on the day of her absence. Whether the company subjectively "accepted" her excuses or not is immaterial. She had good reason to be absent from work, and she gave adequate notice to enable her employer to adjust his production schedules accordingly.
Mrs. St. John's absence from March 13th until April 27th was a result of her acceptance of a physician's judgment that temporary termination of work was necessary for recovery from her injuries sustained in the automobile accident. She apprised her employer of the reason for her absence, a physician's recommendation, on five occasions within ten days after the accident. During the first week of absence she gave notice in literal compliance with the terms of the company work rules. Thereafter, based upon communications from company representatives to members of her family, especially the communication to her husband some eight days after her initial absence, to the effect that when she returned she should come to the office before returning to work, she could reasonably expect that the company was aware of the reason for her absence and had made the necessary production-scheduling adjustments. Whether the statements of the company personnel constituted a "waiver" of the notice requirements is immaterial. To qualify for compensation it is not necessary to find the employer at "fault," in any sense. The focus is upon the employee, and because Mrs. St. John did apprise the company of her absence on five occasions, giving it ample opportunity to adjust production schedules, and because her failure to continue giving notice throughout the duration of her absence was a reasonable response to admittedly ambiguous statements by company personnel, we cannot conclude that by her conduct she manifested an intentional and substantial disregard of her employer's interest. Her course of conduct was not "misconduct connected with employment."
Issue 2. May the issue of whether Mrs. St. John's conduct was a voluntary termination of employment without good cause attributable to the employing unit or compelling personal reasons within the meaning of sec. 108.04 (7) (a), (b), and (c), Stats., be properly raised on this appeal, when the matter was not argued before the Industrial Commission or the circuit court and not passed upon by either body? In the presentation of its case before the examiner, the commission, and the circuit court, the company persistently argued that Mrs. St. John's absences prior to March 13th and her absence after March 22d, without any notice, disqualified her for unemployment compensation benefits. To the company, this behavior came under the statutory category of misconduct. On this appeal the company now contends that the same facts could be viewed as a voluntary termination of employment under the terms of sec. 108.04 (7) (a), (b), and (c), Stats.
"108.04 (7) Voluntary termination of employment. (a) If an employe terminates his employment with an employing unit, he shall be ineligible for any benefits based on such employment, and ineligible for benefits based on other previous employment for the week of termination and the 4 next following weeks, except as hereinafter provided.
"(b) Paragraph (a) shall not apply if the commission determines that the employe terminated his employment with good cause attributable to the employing unit.
"(c) Paragraph (a) shall not apply if the commission determines that the employe terminated his employment for compelling personal reason; provided that, if the commission determines that he is physically unable to work or substantially unavailable for work, he shall be ineligible while such inability or unavailability continues."
At the time of the hearing before the appeal tribunal, the employer stated his reasons for opposing the claim and in this statement he made it clear that one of the company's grounds for objecting was "excessive absences" with or without notice. Because of these assertions, the company may properly raise the issue here of whether this course of conduct constituted "voluntary termination of employment" under the statute ( supra).
Issue 3. Assuming No. 2 is answered affirmatively, was Mrs. St. John's conduct a voluntary termination of employment within the meaning of sec. 108.04 (7) (a), (b), and (c), Stats.? On the merits, to sustain a finding of voluntary termination, we must find that the employee unilaterally severed the employment relationship without good cause attributable to the employer or to compelling personal reasons. We conclude that Mrs. St. John did not unilaterally sever the employment relationship. Her original termination of services, and the total duration of absence, came upon the advice of a physician that such action was necessary to aid her recovery from physical injury. Her continued notice to the company of the reason for the absence during the first week of unemployment is evidence of a desire to remain attached to the employment relationship. We cannot treat her failure to give notice after March 22d as a unilateral severance of the relationship because such failure to communicate further was a reasonable response to the ambiguous statements of company representatives, which could be viewed from her point of view as a statement that the company knew of her condition and had made adjustments accordingly. These factors indicate that Mrs. St John was always ready to return to work when her physical condition permitted. The company unilaterally severed the employment relationship with the letter of April 27th.
By the Court. — Judgment affirmed.