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

JESUS S JIMENEZ, Employee

ASHLEY FURNITURE INDUSTRIES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02000291LX


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 during approximately six years as an assembler and laborer for the employer, a furniture manufacturer. He was discharged Monday, October 1, 2001 (week 40).

The employee last worked when he volunteered to work overtime on Saturday, September 22, 2001. On Sunday, September 23, he was incarcerated due to a reported domestic dispute which triggered a probation hold on a previous, unrelated charge. He contacted the employer by telephone on Monday, September 24, and informed it that he was incarcerated in the county jail and was uncertain as to when he would be released in order to report for work again. He requested that he be permitted to utilize his accrued 9 vacation days to cover his absences. He was informed that the employer would consider this request.

The employer decided not to grant or permit or approve the employee's request for use of his accrued vacation to cover his absences. On October 1, 2001, it issued a letter informing him that he would be discharged if he failed to "provide proper documentation" of his absence within 24 hours of the receipt of the letter. The letter was sent to his last-known mailing address and signed for by his spouse on October 5. She did not show the letter to the employee. The employee was released from jail on November 26, 2001. Upon his release he contacted the employer regarding his employment status. He was informed that he had been discharged.

The issue to be decided is whether the employee's actions, which led to the discharge by the employer, constituted misconduct connected with the 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' with in the meaning of the statute."

Under the legal standard set forth in the Boynton Cab case, mere proof of absence, however frequent, does not create a presumption of misconduct connected with the employment. In determining whether an employee's absenteeism constitutes misconduct connected with the employment, the courts have held that an employee's intent and attitude are the most important factors. Accordingly, misconduct will not be found if a worker's absences are for valid reasons and are promptly reported to the employer. PPG Industries v. DILHR & Reynolds, Dane County Circuit Court, Case No. 161-399, Feb. 7, 1979; Ramlow v. Power Dispatcher's Equipment Co. & Ind. Comm., Dane County Circuit Court, Case No. 107-419, Mar. 2, 1962. Incarceration is not a valid reason for absence. The employee was on probation and knew that his failure to obey the law would lead to his incarceration. The employer was not obligated to allow the employee to use vacation time to cover his absence. Further, the employee had only 9 days of vacation but would have been absent for 45 days. The commission finds that the employee's extended absence from work for an invalid reason evinced an intentional and substantial disregard of the employer's interests and of standards of behavior the employer had a right to expect of the employee rising to the level of misconduct connected with his employment.

The commission therefore finds that in week 40 of 2001, the employee was discharged from his employment and 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 in the amount of $2,061.00 for weeks 48 through 50 of 2001, and weeks 4 through 7 of 2002 for which the employee was not eligible and to which the employee was not entitled, within the meaning of Wis. Stat. § 108.03(1).

The final issue to be decided is whether recovery of overpaid benefits must be waived.

Wisconsin Statute § 108.22(8)(c), provides that the department shall waive the recovery of overpaid benefits if the overpayment was the result of departmental error, and the overpayment did not result from the fault of the employee. Under Wis. Stat. § 108.02(10e)(a) and (b), department error is defined as an error made by the department in computing or paying benefits which results from a mathematical mistake, miscalculation, misapplication or misinterpretation of the law or mistake of evidentiary fact, or from misinformation provided to a claimant by the department, on which the claimant relied.

The overpayment in this case results from the commission's reversal of the appeal tribunal decision. Such reversal was not due to department error as defined in Wis. Stat. § 108.02(10e)(a) and (b).

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 decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 40 of 2001, and until seven weeks elapse since the end of the week of discharge and the employee has earned wages in covered employment equaling at least 14 times the weekly benefit rate which would have been paid had the discharge not occurred. The employee is required to repay the sum of $2,061.00 to the Unemployment Reserve Fund. The initial benefit computation (UCB-700) issued on February 20, 2002, is set aside. If benefits become payable based on work performed in other covered employment a new computation will be issued as to those benefit rights.

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 May 6, 2002
jimenje . urr : 132 : 1 : MC 605.091

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner

MEMORANDUM OPINION

The commission did consult with the ALJ regarding witness credibility and demeanor. The ALJ did not believe it was foreseeable to the employee that he would be arrested for the domestic altercation. The commission disagrees.

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.I. and other special benefit programs that are due to this state, another state or to the federal government.

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


[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]


uploaded 2002/05/10