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

FREDY L PRYOR, Employee

AURORA HEALTH CARE METRO INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02609836MW


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 as an environmental service assistant for twenty-eight and one-half years for the employer, a hospital. The employee's last day of work was June 21, 2002 (week 25).

The employee failed to appear for work between June 23 and July 2, 2002, because he was incarcerated. The employee subsequently plead guilty to false imprisonment and battery. The employee provided the employer notice, through his daughter, that he would be incarcerated for an undetermined period of time. On July 2, 2002 (week 27), the employer notified the employee that he was being taken off of the schedule because of his prolonged and indefinite absence. The employment relationship thereupon came to an end.

The initial issue to be decided is whether the employee voluntarily terminated his employment or was discharged. The evidence in the record does not support a finding that the employee intended to quit his employment. The employee's contact with the employer was consistent with an attempt to maintain the employment relationship. The commission therefore concludes that the employee was discharged by the employer.

The next issue to be decided is whether the employee's discharge was for misconduct connected with his work. 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.

The employee was discharged because of his unavailability for work due to his incarceration. The commission's position in such a case was set forth in, and approved by, the court's decision in Culp v. Consumers Steel and Supply Co., and Ind. Comm. of Wisconsin, (Wis. Cir. Ct. Dane County Dec. 11, 1958) as follows:

The arrest of an employe for off job conduct is not per se misconduct connected with employment. Depending upon the reason for the arrest and the nature of the employe's duties, it may be considered misconduct connected with employment if under the circumstances, it directly affects his suitability for his work. This would be so even if no appreciable absence from work resulted. However, if the nature of the arrest does not affect an employe's suitability for work, then the question is resolved by considering the resulting absence from work. If it does not affect suitability and does not result in an appreciable absence from work, it is not considered misconduct connected with employment.

In the instant case the crime for which the employe was arrested was not connected with his employment. However, the result of his being arrested and incarcerated made it impossible for him to work for a period of at least three weeks, and his absence is deemed to be connected with his employment and is for an invalid reason.

The commission has continued to follow the reasoning set forth in Culp. See e.g., Herman v. Gartland Foundries, Inc., UI Dec. Hearing No. 8201388AH (LIRC Jan. 18, 1983); Jackson v. LIRC and J. I. Case Co., No. 82-CV-1331 (Wis. Cir. Ct. Racine County Feb. 16, 1983); Middleton v. John Emil Brennan, UI Dec. Hearing No. 89602304 (LIRC June 15, 1989); Lee v. Universal Foods Corporation, UI Dec. Hearing No. 90003723 (LIRC Nov. 20, 1990); Schweikert v. Ganton Technologies Inc., UI Dec. Hearing No. 91606281RC (LIRC Mar. 24, 1992); Lambert v. Bridgestone/Firestone Inc., UI Dec. Hearing No. 91608993MW (LIRC May 20, 1992); Kleiber v. R & R Service of West Allis Inc., UI Dec. Hearing No. 97606190MW (LIRC Mar. 19, 1998); McGlaston v. Tower Automotive Products Co. Inc., UI Dec. Hearing No. 99600019MW (LIRC Apr. 2, 1999); Carlson v. Hormel Foods Corp., UI Dec. Hearing No. 00005016JV (LIRC Feb. 22, 2001); Miller v. Milwaukee Public School, UI Dec. Hearing No. 00609095MW (LIRC Sep. 14, 2001); Jimenez v. Ashley Furniture Industries Inc., UI Dec. Hearing No. 02000291LX (LIRC May 6, 2002); and Philon v. Guyers Builder Supply Inc., UI Dec. Hearing No. 02603203MW (LIRC Feb. 11, 2003).

In this case, the crimes for which the employee was arrested, and to which he plead guilty, were not connected with his employment. However, because of his criminal conduct he was unable to notify the employer of the date he would be available for work. The employee missed an appreciable period of work time for an invalid reason. The employee's actions demonstrated 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.

The commission therefore finds that in week 27 of 2002, the employee was discharged 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 $3,718.00 for which the employee was not eligible and to which the employee was not entitled, within the meaning of Wis. Stat. § 108.03(1), and that the entire amount must be repaid to the department because the overpayment was not because of any error by the department and/or was caused partially or wholly by the employee, within the meaning of Wis. Stat. § 108.22(8)(a) and (c).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 27 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 weekly benefit rate which would have been paid had the discharge not occurred. The employee is required to repay the sum of $3,718.00 to the Unemployment Reserve Fund. The initial benefit computation (UCB-700) issued on October 3, 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 July 17, 2003
pryorfr . urr : 132 : 1 :  MC 605.091  MC 626 

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner



MEMORANDUM OPINION

The employee states in his petition that his daughter was assured by the employer that there would be no problem for the employee to obtain time off from work. The employee states that he is offended by the assumption that he quit his employment after so many years with the employer, when he made efforts to maintain his employment. The commission does agree with the employee that the record did not establish that the employee formed the intent to terminate his employment. However, his attempts to maintain contact with the employer came after he had already committed actions that resulted in his incarceration, and therefore his inability to appear for work as scheduled. Further, the employer had the right to decide, after an appreciable period of absence, that it no longer would continue his employment. The commission therefore concluded that the employer did discharge the employee, but that the employee's absence for an invalid reason constituted misconduct connected with his employment.

NOTE: Repayment instructions will be mailed after this decision becomes final. The department will with hold benefits due for future weeks of unemployment in order to off set over payment of U.I. and other special benefit programs that are due to this state, an other 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 over payment.


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