In the matter of the unemployment benefit claim of

LARRY D SELLNOW, Employee

Involving the account of

NAVISTAR INTERNATIONAL TRANSPORTATION CORP, Employer

On October 4, 1994, the Department of Industry, Labor and Human Relations (department) issued an initial determination finding that the employe was discharged for misconduct within the meaning of section 108.04 (5), Stats. The employe timely appealed. A hearing was held before an administrative law judge. On November 11, 1994, the administrative law judge issued his appeal tribunal decision, reversing the initial determination, finding that the employe was discharged but not for misconduct within the meaning of sec. 108.04 (5), Stats. The employer timely petitioned the commission for review of the appeal tribunal decision.

Based upon the applicable law, records and evidence in this case, and after consultation with the administrative law judge, the commission makes the following:

The employe worked approximately 15 months for the employer. The employe's last day of work was September 16, 1994 (week 38). The employe was discharged on September 20, 1994 (week 39).

In July of 1994 the employer discharged the employe for absenteeism. The employe had been incarcerated for 5 days following a battery charge. On July 19, 1994, the employe and employer entered into a conditional reinstatement agreement. The agreement provided that the employe would show an immediate and continued improvement of his attendance and prohibited any unauthorized absences for the next year.

The employe was scheduled for work Sunday evening, September 18, 1994 (week 39). The employe however never reported to work that evening, since the previous evening, September 17th, the employe had been incarcerated for disorderly conduct. The employe testified that he became involved in a fracas involving two neighbors. The employe and his neighbors shared a kitchen and someone had taken his potroast out of the oven and threw it out. The employe testified that he was trying to break up the fight between his two neighbors and ended up getting into a physical fight with them. Someone telephoned the police and the employe was incarcerated for the weekend of September 17. The employe notified the employer of his incarceration on September 18 and also informed the employer on September 19 that he was still in jail. The employe was transferred from jail to the Huber facility at 10:30 p.m. on September 19, and was not released for work until September 20. The employe telephoned the employer on September 20, and was told over the telephone that he no longer had a job since he violated his reinstatement agreement.

The issue for review is whether the employe's discharge was for misconduct. 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 goodfaith errors in judgment or discretion are not to be deemed 'misconduct' within the meaning of the statute."

The employe contends that his absences were excusable under the reinstatement agreement because the disorderly conduct charges were dropped and consequently he was never convicted. Nevertheless, the employe's incarceration on the weekend of September 17, 1994, prevented the employe from reporting to work in a timely fashion and consequently led to the employe's intentional violation of the reinstatement agreement. The commission is satisfied that the employe was not an innocent bystander who accidentally became involved in the fracas. Rather his conduct led him to miss work and intentionally violate the terms of the reinstatement agreement. Under these circumstances, the commission is satisfied that the employer established that the employe's discharge was for misconduct connected his employment.

The commission therefore finds that in week 39 of 1994, the employe was discharged for misconduct connected with his employment, within the meaning of section 108.04 (5), Stats.

The commission further finds that the employe was paid benefits amounting to $1,182 for which he is not eligible and to which he is not entitled, within the meaning of section 108.03 (1), Stats. Pursuant to section 108.22 (8)(a) Stats., 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 section 108.22 (8)(c), Stats., because although the overpayment did not result from the fault of the employe as provided in section 108.04 (13)(f), Stats., the overpayment was not the result of a department error. See section 108.22 (8)(c)2., Stats.

The decision of the appeal tribunal is reversed. Accordingly, the employe is ineligible for benefits beginning in week 39 of 1994, 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. He is required to repay the sum of $1,182 to the Unemployment Reserve Fund.

Dated and mailed March 5, 1995
135 : CD8558    MC 605.091

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner

The commission conferred with the administrative law judge as to his credibility impressions and assessments of those who testified. During the credibility conference, the administrative law judge indicated that he believed that the employe did not instigate the fight he became involved in. Rather, the administrative law judge indicated that he believed the employe when he testified that he attempted to end the fight between his two neighbors. After conferring with the administrative law judge and reviewing the record, the commission is not as persuaded as the administrative law judge is regarding the employe's role in the fight which led to his incarceration. The commission is satisfied that even though the employe did not instigate the fight he was a primary actor in sustaining the fight. In light of the reinstatement agreement, the employe either knew or should have known that his involvement that night could have led to his incarceration. Under these circumstances, the commission concludes that the employe's discharge was for misconduct within the meaning of the law.

cc: Navistar International

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