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

JOSEPH A WILFLING, Employee

KRC (HEWITT) INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 96401021AP


An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development (Department of Industry, Labor and Human Relations prior to July 1, 1996) 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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employe is eligible for benefits as of week 7 of 1996, if otherwise qualified.

Dated and mailed August 1, 1996
wilfijo.usd : 105 : 0 MC 605.05

Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ David B. Falstad, Chairman

MEMORANDUM OPINION

The crux of the employer's assertions in its petition for review is that the employe did not state during his February 12 meeting with the employer or during subsequent grievance meetings, the defenses he asserted at the hearing before the administrative law judge. There could be any number of reasonable explanations for this, however; the inference is not required that the employe was lying at the unemployment compensation hearing. The administrative law judge who presided over the hearing was in the best position to gauge the credibilities of the witnesses; she found the employe's assertions credible, and nothing in the hearing record indicates that her assessment was erroneous.

Even if the employe's failure to call in during the three days in question were considered a violation of the collective bargaining agreement, it would not necessarily constitute misconduct for unemployment compensation purposes. Not every work rule violation which warrants separation is the intentional and substantial disregard of the employer's interests which is misconduct. See Milwaukee Transformer Co. v. Industrial Comm., 22 Wis. 2d 502, 126 N.W.2d 6 (1964). In that case, despite a work rule requiring absent employes to telephone the employer every day of an absence, the employe failed to communicate with her employer from March 22 until April 27, following an automobile accident the employe had been in on March 13. The Industrial Commission, circuit court, and Wisconsin Supreme Court all found no misconduct by the employe. The same reasoning applies in this case. The employe had worked for the employer for approximately 29 years, and the employer had notice of the employe's absence. For these reasons, and those stated in the appeal tribunal decision, the commission agrees with the administrative law judge's conclusion of no misconduct.

 


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