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

GEORGE S SIMMONS, Employee

KLEMM TANK LINES, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02403991GB


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 about eight years as a mechanic for the employer, a trucking company.

The issue is whether the employee's separation was a quit or a discharge, and whether it occurred under circumstances which would permit the payment of benefits.

The employee was scheduled to work four ten-hour shifts (3:00 p.m. - 1:30 a.m.) on September 24, 25, 26, and 27, 2002. On September 21, 2002, the employee was arrested for disorderly conduct and domestic abuse. He admits that he was the aggressor, that he "got rather rough" with his fiancée and "pushed her up against a garage door."

As a result of this arrest, the employee was jailed from September 21 through noon on September 27, 2002, and did not report for his scheduled shifts on September 24-27, 2002. On September 30, 2002, the employee contacted the employer and was told that he no longer had a job.

The commission has generally held that a separation occurring under these circumstances is a discharge. See, e.g., Lee v. Universal Foods Corp., UI Hearing No. 90-003723 (LIRC Nov. 20, 1990) (the employee was discharged for misconduct for missing five consecutive days of work due to his incarceration, and his contacts with the employer and attempts to contact the employer during this period showed he had no intent to quit); Schweikert v. Ganton Technologies, Inc., UI Hearing No. 91-606281 (LIRC Mar. 24, 1992) (the employee was discharged for misconduct for missing 14 scheduled work days due to his incarceration, and his notice to the employer each day of his absence showed he had no intent to quit); Jimenez v. Ashley Furniture Industries, Inc., UI Hearing No. 02000291LX (LIRC May 6, 2002) (the employee, who contacted the employer to provide notice that he was incarcerated on his first day of absence from work, was discharged for misconduct for missing a week of work due to his incarceration); Philon v. Guyers Builder Supply Inc., UI Hearing No. 02603203MW (LIRC Feb. 11, 2003) (employee's separation based on his absence without notice for 3 scheduled shifts due to his incarceration was a discharge for misconduct, not a quit).

The next question would be whether this discharge was for misconduct. Under the legal standard set forth in Boynton Cab Co. v. Neubeck & Ind. Comm., 237 Wis. 249, 296 N.W. 636 (1941), mere proof of absence, however frequent, does not create a presumption of misconduct. In determining whether an employee's absences constitute misconduct, the courts and the commission have held that misconduct will not be found if the absences are for valid reasons and are promptly reported to the employer. PPG Industries v. DILHR & Reynolds, Case No. 161-399 (Dane Co. Cir. Ct., Feb. 7, 1979); Ramlow v. Power Dispatcher's Equipment Co. & Ind. Comm., Case No. 107-419 (Dane Co. Cir. Ct., Mar. 2, 1962). Generally, the commission has held that incarceration is not a valid reason for absence from work when the employee has intentionally engaged in the criminal conduct for which he was incarcerated. Joe D. Culp v. Consumers Steel and Supply Co. (Dane Co. Cir. Ct., Dec. 11, 1958); Schweikert, supra; Philon v. Guyers Builder Supply Inc., UI Hearing No. 02603203MW (LIRC Feb. 11, 2003); Love v. Emmpak Foods, Inc., UI Hearing No. 99604845MW (LIRC Jan. 27, 2000); Carlson v. Hormel Foods Corp., UI Hearing No. 00005016JV (LIRC Feb. 22, 2001). See, also, Jackson v. LIRC and J. I. Case Co., Case No. 82-CV-1331 (Racine Co. Cir. Ct., Feb. 16, 1983). Here, the employee does not dispute that he was the aggressor in the physical attack on his fiancée which led to his arrest and incarceration.

The commission has found misconduct under such circumstances even where the employee has provided notice to the employer of his absences (Lee, supra; Schweikert, supra; Jimenez, supra); and without regard to whether the employee had received prior warnings for attendance issues or was aware of the employer's attendance policy relating to extended absences (Jimenez, supra; Schweikert, supra; Philon, supra).

The commission therefore finds that, in week 39 of 2002, the employee was discharged for misconduct connected with his employment within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is reversed to find a discharge rather than a quit. Accordingly, the employee is ineligible for benefits beginning in week 39 of 2002, and until seven weeks have elapsed since the end of the week of discharge and the employee has earned wages in covered employment performed after the week of discharge equaling at least 14 times the employee's weekly benefit rate which would have been paid had the discharge not occurred.

Dated and mailed June 30, 2003
simmoge . urr : 115 : 1 MC 626  MC 605.091

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

NOTE: The commission did not confer with the administrative law judge because its reversal did not rely on different factual findings or different credibility determinations, but instead on a different legal conclusion.


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


uploaded 2003/07/14