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

JOSEPH  R  MACKOWIAK, Employee

J  B  HUNT TRANSPORT  INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00201700EC

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 employee began working in September of 1999 as a truck driver for the employer, a transportation company. His last day of work was May 25, 2000 (week 22).

The first issue to be decided in this case is to determine the status of the employment relationship and whether there was a separation of employment, following the employee's last day of work. A secondary issue involves the employee's eligibility for benefits in view of the nature of the employment relationship.

The employee's usual work schedule was to be on the road for two weeks, and then to be off for up to four days. Following his last day of work, the employee was scheduled for several days off. He then asked the manager for a 60-day leave of absence. The employer sent the employee paperwork for a leave of absence. The paperwork was marked off for a 30-day personal leave. The paperwork was not marked for a family leave because the employee had not worked long enough for the employer to qualify for one. The employee wanted the leave to deal with matters regarding his girlfriend and his six-month old son. His girlfriend was not always home and was exhibiting some mental problems, and the employee was concerned about care for his son. Approximately June 24, 2000 (week 26), the employee and manager spoke, and the manager told the employee that he needed to be ready to return to work by June 28, 2000 (week 27). The employee said that he could not be ready to leave then. The manager made arrangements shortly after that to pick up the truck the employee had for a new driver to use. The employee did not return to work then because he was still having problems with his girlfriend and arranging for care for his son. On July 25, 2000 (week 31) the employee was able to return to work. He contacted the employer but was not rehired.

The commission finds that the employer terminated the employee's employment because he was unavailable for suitable work otherwise available with the employer. The employee's inability to meet the deadline for returning to work set by the employer did not demonstrate an intent on his part to sever the employment relationship. The employee's continuing need for leave was not out of choice but necessity.

The commission therefore finds that in week 27 of 2000 the employer terminated the employee's employment because he was unavailable for suitable work otherwise available with the employer but that as of week 31 of 2000, he was able to work and available for work in his labor market, within the meaning of Wis. Stat. § 108.04(1)(b)1.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 31 of 2000, if he is otherwise qualified. There is no overpayment with respect to this issue.

Dated and mailed December 7, 2000
mackojo.urr : 132 : 1 : AA 120  VL 1007.05

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission did not consult with the administrative law judge regarding witness credibility or demeanor. The commission accepts the administrative law judge's factual findings but disagrees with the legal conclusions reached based on those findings.

cc: J B HUNT TRANSPORT INC

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