Wis.LIRC UC Decision: Carlson, Jerry - February 22, 2001 - MC 605.091 - Absence, Arrest - Incarceration - employee's arrested and absent from work while awaiting bond hearing - employee's failure to act caused a chain of events that created circumstances which made him unavailable for 6 consecutive working days, leading to discharge under employer's attendance policy.

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

JERRY D CARLSON, Employee

HORMEL FOODS CORP, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00005016JV

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 worked approximately 23 years, most recently as a second shift laborer for the employer, a food processing company. The employee's last day of work was July 28, 2000. The employee was discharged on August 15, 2000 (week 34).

The employer has an attendance policy that provides that absences due to incarceration are considered to be "unexcused absences" for which workers receive two points per occurrence. The employer also has a progressive discipline policy that provides for a verbal warning at 4 points, a written warning at 6 points, a first strike at 8 points, a second strike and 3-day suspension without pay at 10 points, and a third strike and discharge at 11 points.

During the course of the employee's employment, the employee received no disciplinary warnings and was considered to be a good employee. The employee was scheduled to return to work on Monday, August 7, 2000, after a week of vacation. On August 3, 2000, the employee was arrested and charged with several criminal offenses, including possession of drugs with intent to distribute. The employee remained incarcerated until August 15, 2000, due to his inability to pay the bond that had been originally set. Prior to the employee's arrest, he had no criminal record.

The employee was expected to return to work from his vacation on Monday, August 7, but instead was in jail awaiting a bond reduction hearing. Because of the employer's phone system, the employee was unable to make a collect phone call directly to the employer. The employer has an automated phone system that does not allow for messages to be received. The employee did make a collect phone to his friend and co-worker on August 4, the day the employee was to return to work. The co-worker informed the receptionist that the employee would not be in. On August 9, the personnel manager spoke to the co-worker asking the employee's whereabouts. The co-worker indicated that the employee was in jail awaiting a bond reduction hearing. The personnel manager gave the co-worker his home phone number and told the co-worker to have the employee call him collect at his home that night.

The employee called the personnel manager that night and told him that he was trying to raise bail and would be in to work as soon as he could raise the bail. The employee called the manager again the next night to let the manager know that he had not been able to raise bail. The bond judge was on vacation and bond hearing to address the reduction of bail would not be held until Monday, August 14. The personnel manager informed the employee that another personnel manager would be replacing him the next week.

The bond reduction hearing was held on Monday, August 14 and the employee was released on Tuesday, August 15. Before the start of his shift on August 15, the employee contacted the new personnel manager about returning to work. The new manager conferred with the plant manager about the employee and a decision was made to discharge the employee due to his accumulation of attendance points in violation of the employer's attendance policy. The personnel manager left a message on the employee's answering machine notifying him that he had been discharged.

The issue to be decided is whether the employee's discharge was for misconduct connected with his employment. 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."

Based on the employer's written attendance policy, the ALJ noted that the employer's policy did not mandate the employee's discharge. In addition the ALJ noted that if the suspension included the 5th and 6th and 7th day of absence (the earliest 3 days) the employee would have been in his 3-day suspension when he contacted the employer on August 15 before the start of his shift. At that point, the ALJ concluded that the employee was still under suspension with only a total of 10 points, and not the 11 points required for discharge. In addition, the ALJ considered the employee's unblemished record with the employer and a lack of prior convictions. Notwithstanding the ALJ's carefully considered decision, the commission reaches a contrary result when applying the law to the facts at hand.

Generally, the commission holds that absences due to incarceration are not for valid reasons when an employee intentionally engages in criminal activity that leads to an extended absence from work because of incarceration. See Brian W. Schweikert v. Ganton Technologies, Inc., Hearing No. 91-606281, (LIRC March 24, 1992), and most recently Andre K. Love v. Emmpak Foods, Inc., Hearing No. 99604845MW, (LIRC January 27, 2000).

In Andre Love, the commission noted that is has found misconduct based on incarceration in the past if it was able to find affirmatively that the employee's failure to act caused a chain of events which created circumstances which made him unavailable for work. In Andre Love, the record did not establish that the employee's failure caused the incarceration as he was mistakenly arrested for robbing a cab and no charges were pressed. The commission cannot reach such a result with the present facts. The commission is satisfied that the employee's failure to act caused a chain of events that created circumstances which made him unavailable for 6 consecutive working days. Furthermore, the commission is satisfied that under the employer's attendance policy, the employee accumulated a sufficient number of points justifying a discharge under the employer's policy.

The commission therefore finds that in week 34 of 2000, the employee was discharged for misconduct connected with his work, within the meaning of Wis. Stat. � 108.04(5).

The commission further finds that the employee was paid benefits amounting to $6,408.00 for which he is not eligible and to which he is not entitled, within the meaning of Wis. Stat. � 108.03 (1). Pursuant to Wis. Stat. � 108.22 (8)(a), he is required to repay such sum to the Unemployment Reserve Fund.

The commission further finds that waiver of benefit recovery is not required under Wis. Stat. � 108.22 (8)(c), because although the overpayment did not result from the fault of the employee as provided in Wis. Stat. � 108.04 (13)(f), the overpayment was not the result of a department error. See Wis. Stat. � 108.22 (8)(c)2.

DECISION

The appeal tribunal decision is reversed. Accordingly, the employee is ineligible for benefits beginning in week 34 of 2000, and until seven weeks have elapsed since the end of the week of discharge and he has earned wages in covered employment performed after the week of discharge equaling at least 14 times his weekly benefit rate which would have been paid had the discharge not occurred. The employee is required to repay $6,408.00 to the Unemployment Reserve Fund.

For purposes of computing benefit entitlement: Base period wages from work for the employer prior to the discharge shall be excluded from any computation of maximum benefit amount for this or any later claim. If the employee was also paid base period wages from work by other covered employers, the excluded wages shall be used to determine benefit eligibility. However, any benefits otherwise chargeable to a contribution employer's account shall be charged to the fund's balancing account.

Dated and mailed February 22, 2001
carlsje.urr : 135 : 1 MC 605.091

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

NOTE: Repayment instructions will be mailed after this decision becomes final. The department will withhold benefits due for future weeks of unemployment in order to offset overpayment of U.C. and other special benefit programs that are due to this state, another state or to the federal government.

Contact the Unemployment Compensation Division, Collections Unit, P. O. Box 7888, Madison, WI 53707, to establish an agreement to repay the overpayment.

MEMORANDUM OPINION

The commission reverses the appeal tribunal decision as a matter of law. The commission does not disagree with any credibility assessment or impressions made by the ALJ but rather reaches a different legal conclusion when applying the law to the facts at hand. The commission is satisfied that the employee's extended absence caused by his incarceration made him unavailable for work and as such, constitutes misconduct within the meaning of Wis. Stat. � 108.04(5).

cc: HORMEL FOODS CORP

MISSY OWENS
SENIOR CLAIMS EXAMINER
C/O JON JAY ASSOCIATES INC

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uploaded 2001/02/26