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

KENNETH E HOPKINS, Employee

PACKERLAND PACKING COMPANY INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 97600010EC


An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development (Department of Industry, Labor and Human Relations prior to July 1, 1996) 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 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 nine months as a flusher operator for the employer, a beef slaughter business. His last day of work was May 4, 1996 (week 18).

The employe was a state prisoner originally from Milwaukee who was serving his sentence in Green Bay under the authority of the State Department of Corrections. He was placed in the intensive sanctions program by the department and granted work release privileges. While in that program, he worked for the employer, a private employer who accepts prison workers. After completing the intensive sanctions program, the department transferred him to Milwaukee where he was paroled. The employe gave notice to the employer that he was leaving. He left his job solely because he had to return to Milwaukee as a condition of his parole.

The issue is whether the employe's separation from employment falls within any exception permitting the immediate payment of benefits.

In its brief, the department argues that the employe's situation falls within its policy governing prisoners whose jobs end solely due to the conditions of their releases from prison. The department recognizes that such separations are not directly caused by either the employer or the employe but by the Department of Corrections. The commission has also recognized that principle in James Mattes v. LSJ Sportswear, Inc., (decided 1/26/95). In Mattes, the commission affirmed that the employe was eligible for benefits under sec. 108.04 (1) (b) l of the statutes when his employment was ended by the employer after he became unavailable for work due to a transfer by the Department of Corrections. The commission finds the same occurred in this instance.

The next issue to be determined is whether the employe was otherwise able and available for work following his separation. Since the employe's transfer to the Milwaukee area was for the purposes of living and seeking work in the area, it cannot be found that he was unavailable for work at any time while seeking benefits. No evidence was presented at the hearing that he was physically unable to work or not available for work at any time during the period in question.

Finally, the employer's account will not be charged for the employe's benefits pursuant to sec. 108.07(8), which provides that benefits are chargeable to the balancing account instead of the employer's account if a prisoner's employment with a private employer is ended because the conditions of incarceration make it impossible to continue. This provision recognizes that in such instances, the termination of the employment relationship is not truly attributable to either party and the employer should not therefore bear the cost of the employe's benefits.

The commission therefore finds that in week 19 of 1996, the employe's employment was terminated by the employer because the employe was unable to do, or unavailable for, suitable work otherwise available with the employer, within the meaning of section 108.04(1)(b)1 of the statutes, but that the employe was able to work and available for work on the general labor market, within the meaning of said section.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employe is eligible for benefits beginning in week 19 of 1996, if otherwise qualified.

Dated and mailed March 27, 1997
hopkike . urr : 178 : 3    AA 245

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ David B. Falstad, Commissioner

NOTE: If the employer is subject to the contribution requirements of the Wisconsin unemployment compensation law, any benefits payable to the employe based on work performed for the employer prior to the quitting will be charged to the fund's balancing account.



MEMORANDUM OPINION

The commission reverses the appeal tribunal decision as a matter of law and not due to any differing assessment of witness credibility.


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