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

RANDY L BRINKMAN, Employee

J STADLER MACHINE INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03401429AP


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 three years as a toolmaker for the employer, a machine shop.

During this period of employment, the employee was on probation as the result of a criminal conviction.

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

The employee contacted the employer on Wednesday night, March 19, 2003, to advise that he was in jail on a probation hold and did not know how long he would be there.

While the employee was on probation, he had been arrested twice for shoplifting, once in August of 2002 and once in February of 2003. His probation officer had ordered that he be picked up on a probation hold when she learned of the second arrest and, while he was jailed on this probation hold, learned of the first one.

The employee did not contact the employer again until Monday, March 24, 2003, when he indicated that he "should get out on Tuesday." The employee was released from jail late in the afternoon on Tuesday, March 25, 2003, but did not contact the employer that day.

The employee reported to work on Wednesday, March 26, 2003. At that time, the employer told the employee that he no longer had a job.

The employee was convicted of the shoplifting (retail theft) offenses for which he had been arrested.

The employee missed four days of work, and called the employer twice during this time period. Due to the employee's efforts to maintain contact with the employer, and his appearance at work on March 26, the commission concludes that the separation was a discharge, not a quit. 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); 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).

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 v. Ganton Technologies, Ind., UI Hearing No. 91-606281 (LIRC March 24, 1992); 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 was discharged for missing work for four consecutive days. It is reasonable to assume that the employee knew that engaging in shoplifting or any other criminal offense, or failing to report an arrest to his probation officer, would violate the terms of his probation, and would result in his immediate incarceration. The employee intentionally engaged in criminal activity, and failed to properly report his arrest for this activity, which resulted in his incarceration on a probation hold. He began the chain of events which resulted in his failure to report to work. The employee did not, therefore, have a valid reason for his absences. See, Philon, supra., (misconduct where employee absent without notice for three scheduled shifts due to his incarceration); Simmons v. Klemm Tank Lines, UI Hearing No. 02403991GB (LIRC June 30, 2003)(misconduct where employee absent for four scheduled shifts because arrested and incarcerated for admittedly being the aggressor in physical attack on his fiancee).

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 13 of 2003, the employee was discharged for misconduct connected with his employment within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employee was paid benefits in the amount of $7,720 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 waiver of this overpayment is not merited since the initial award of benefits was not based on department error but instead on a differing interpretation of the applicable law.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 13 of 2003, 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. The employee is required to repay the sum of $7,720 to the Unemployment Reserve Fund.

The initial Benefit Computation (Form UCB-700), issued on May 12, 2003, is set aside. If benefit payments become payable based on other employment, a new computation will be issued as to those benefit rights.

Dated and mailed November 19, 2003
brinkra . urr : 115 : 1   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 before reversing her decision, because this reversal was not based upon a differing view as to the credibility of witnesses.

cc: Attorney Andrew J. Phillips


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