BEFORE THE
STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION

In the matter of the unemployment benefit claim of

CURTIS D LAMBERT, Employee

Involving the account of

BRIDGESTONE/FIRESTONE INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 91608993MW


On November 9, 1991, the Department of Industry, Labor and Human Relations (the Department) issued an Initial Determination which held that the employe was discharged for misconduct connected with his employment. As a result, benefits were denied. The employe appealed and a hearing was held before an Appeal Tribunal on December 23, 1991. The Appeal Tribunal reversed the Initial Determination and, on December 27, 1991, issued a decision finding that the employe was discharged, but not for misconduct connected with his employment. Consequently, benefits were allowed under the Appeal Tribunal Decision. The employer filed a petition for Commission review under sec. 108.09 (6)(a), Stats.

Based on the applicable law, records and evidence in this case, the Commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked for the employer for slightly over two years as an auto technician. His last day of work was February 28, 1991 (week 9). He was discharged by the employer at about that time. The issue in this case is whether his discharge was for misconduct within the meaning of sec. 108.04 (5), Stats.

In February of 1990, the employe was involved in an automobile accident. He was subsequently convicted of a felony arising from the accident which led to his incarceration beginning on February 28, 1991. Between the time of the accident and his incarceration, the employe was free on bond. Upon his release from prison on October 18, 1991, the employe contacted the employer about returning to work. He was told by his supervisor that he had been discharged while he was in prison because he was not available to do his job.

In Boynton Cab Co. v. Neubeck, 237 Wis. 249, 259-60 (1941), the leading case with respect to the term "misconduct" as applied to unemployment compensation in Wisconsin the court stated, in part, as follows:

". . . the indended meaning of the term 'misconduct' . . . is limited to conduct evincing such wilful and wanton disregard of an employer's interests as is found in deliberate violations or disregard of the standards of behavior which the employer has a right to expect of his employe, 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 or substantial disregard of the employer's interests or of the employe's duties and obligations to his employer."

The Commission has in the past generally treated an employe's absence from work because of incarceration as misconduct. The Commission and the courts have held that in such cases an employe's absence is not for a valid reason when an employe intentionally engaged in criminal activity that led to an extended absence from work because of incarceration. See, Joe D. Culp v. Consumers Steel and Supply Co., Dane Co. Cir. Ct. (December 11, 1958). The Commission more recently reached a similar result in Brian W. Schweikert v. Granton Technologies Inc., Hearing No. 91606281RC (Commission Decision dated March 24, 1992).

Employers have the burden of proof in misconduct cases. Consolidated Const. Co., Inc. v. Casey, 71 Wis. 2d 811, 820 (1976). That means the evidence at the hearing must establish the employer's allegation of misconduct in order for the employer to prevail. The employer in this case, however, failed to appear at the hearing. Nonetheless the employe testified that he was discharged because he was unavailable for work due to his conviction. Consequently, the record contains sufficient evidence to establish that the employe was discharged for misconduct, consistent with Commission precedent.

The Commission therefore finds that in week 9 of 1991, the employe was discharged for misconduct connected with his work, within the meaning of sec. 108.04 (5), Stats.

The Commission further finds that the employe was paid benefits in the amount of $225 per week for each of weeks 43 through 48 of 1991, amounting to a total of $1,350 for which he was not eligible and to which he was not entitled, within the meaning of sec. 108.03 (1), Stats. Pursuant to sec. 108.22 (8)(a) of the Stats., he is required to repay such sum to the Unemployment Reserve Fund.

DECISION

The Appeal Tribunal Decision is reversed. According, the employe is ineligible for benefits beginning in week 9 of 1991, 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 equalling at least 14 times his weekly benefit rate which would have been paid had the discharge not occurred. He is required to repay the sum of $1,350 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 maxium benefit amount for this or any later claim. If the employe 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 20, 1992
101 : CD3361  MC 605.091 PC 714.03 

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner

MEMORANDUM OPINION

The Commission did not. confer with the Appeal Tribunal because it did not reverse on the basis of witness credibility or demeanor. Transamerica Ins. Co. v. ILHR Dept., 54 Wis. 2d 272, 283-84 (1972). Rather, the Commission reached a different legal conclusion upon essentially the same set of facts as found by the Appeal Tribunal. Specifically, the Appeal Tribunal found the reason the employe was discharged, his unavailability because of his incarceration, was not connected to his employment and that the employer failed to meet his burden to prove misconduct on any other grounds because it failed to appear at the hearing. However, the Commission disagrees for the reasons set out above.

NOTE: The Department will withhold benefits due for future weeks of unemployemt in order to offset, overpayment of U.C. and other special benefits programs due to this state, another state, or to the federal government.

Contact the Unemployment Compensation Division, Collections Unit, P. 0. Box 788, Madison WI 53507, to establish an agreement to repay the overpayment.


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