BEFORE THE
STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION

In the matter of the unemployment benefit claim of

JOE E DURHAM, Employee

Involving the account of

PACON CORPORATION, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 82-41632 FA


A department deputy's initial determination held that in the week ending July 10, 1982 (week 28), the employe was discharged by the employer for misconduct connected with his employment. Accordingly, benefits were denied. The employe timely appealed and hearing was held on August 24, 1982. The appeal tribunal decision issued August 25, 1982 amended the initial determination as to the week of issue, reversed the finding of misconduct and allowed benefits. The employer timely petitioned for review by the Commission.

Based on the evidence and applicable law, the Commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked approximately six years as a punch machine operator for the employer, a paper manufacturer. His last day of work was Friday, June 25, 1982 (week 26). He was discharged on July 7, 1982 (week 28).

On March 18, 1982 (week 12) the employe received a written warning for negligent spoilage of work. In week 27 (the week ending July 3, 1982), the employe was scheduled to work Monday through Friday. On Monday, June 28, 1982 (week 27), he did not report to work but a friend of the employe telephoned the employer before the start of the employe's work-shift and gave the employer notice that the employe would not be reporting for work that day. Thereafter, the employe failed to report for work on Tuesday, June 29, Wednesday, June 30 and Thursday, July 1, 1982 (week 27). Neither the employe nor his friend contacted the employer on those dates.

The employer and the employe's union had mutually adopted work rules which were incorporated into their collective bargaining agreement. The employe was aware of these rules. Specifically, he was aware that he was required to give notice to the employer prior to the start of a work-shift if he would not be reporting on that shift. He was also aware that four violations of the work rules within a twelve-month period would result in discharge and that the negligent work performance for which he was warned in March 1982 constituted one such violation.

The employe contended that his conduct did not constitute misconduct because he was incarcerated from Sunday June 27, 1982 (week 27) until Wednesday, July 7, 1982 (week 28) and had asked his friend to give the employer notice regarding his absence.

The employe's friend did not testify and it was not established that such friend telephoned the employer after June 28, 1982 (week 27) nor was it established that the notice given to the employer by the friend on that date constituted actual or reasonable notice of the employe's continuing absences after that date.

The employe was on probation for a criminal offense of which he had been convicted. On Sunday, June 27, 1982 (week 27), he was arrested on a new charge which had not been resolved at the time of the hearing herein. His incarceration, which caused him to be unable to report to work, was based on both the new criminal charge and a "hold" placed on him by his probation officer. The Commission considers that, on this record, such incarceration cannot be held to be an invalid reason for his absence from work because he must be presumed innocent of the new charge and there is no evidence that he violated the conditions of his probation. Therefore, neither reason for his incarceration violated the conditions of his probation. However, the employe's failure to give notice of his continuing absences, together with his negligent work performance in March 1982 was blameworthy conduct. The employe conceded that he was permitted unlimited telephone calls while incarcerated. Although he contended that he could not pay for such calls, he did not attempt to place a collect telephone call to the employer and he did not attempt to correspond with the employer by letter during the ten-day period between his arrest and his first direct contact with the employer on July 7, 1982 (week 28).

Under all the circumstances, the Commission considers that the employe's negligent work performance in march 1982 and his failure to give the employer reasonable notice of his absences on June 29 and 30 and July 1, 1982 evinced a wilful, intentional and substantial disregard of the employer's interests and of the standards of conduct that the employer had a right to expect of him.

The Commission therefore finds that in the week ending July 10, 1982 (week 28), the employe was discharged for misconduct connected with his employment, within the meaning of section 108.04(5) of the statutes.

The Commission further finds that the employe was paid benefits in the amount of $4,140 for weeks 28 through 52 of 1982 and weeks 1 through 5 of 1983, for which he was not eligible and to which he was not entitled, within the meaning of section 108.03(1) of the statutes, and that, pursuant to section 108.22(8)(a) of the statutes, he is required to repay such sums to the Unemployment Reserve Fund.

DECISION

The appeal tribunal decision is reversed. Accordingly, the employe is ineligible for benefits based on employment with the employer and he is ineligible, in weeks 28 through 31 of 1982, for benefits based on employment with previous employers. He is required to repay the sum of $4,140 to the Unemployment Reserve Fund. The Monetary Computation (Form UC-30) dated August 31, 1983, is set aside.

Dated and mailed February 17, 1983
200 - CD5013 MC 605.091

/s/ David A. Pearson, Chairman

/s/ Virginia B. Hart, Commissioner

/s/ Pamela I. Anderson, Commissioner


NOTE: The Commission has reversed the appeal tribunal as a matter of law;  such reversal is not based on any assessment of credibility differing from that of the hearing examiner.

cc: 
Robert Taunt, Attorney
Van Hoof, Van Hoof, Taunt & Lenhart


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