TONY LUCAS, Employee

VULCAN LEAD INC, Employer

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:

The employee worked about five months as an inspector for the employer, a manufacturer of lead products. The employee was discharged on August 5, 2003 (week 29).

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

The employer's attendance policy permitted each employee six "no fault" days of absence each calendar year. A single "no fault day" could include up to three consecutive days of absence in one week. In calendar year 2003, the employee used all six of his "no fault days" prior to July 15, 2003.

The employer's attendance policy provided that, after exhausting his "no fault days" of absence, an employee would be terminated upon accumulating four "incident days" of unexcused absence. A single "incident day" could include up to three consecutive days of absence in one week.

On July 15, 2003, the employee was arrested and incarcerated pursuant to a bench warrant based on his failure to pay a ticket. The employee opted to remain in jail for 22 days rather than pay an $893 fine.

On or around July 17, 2003, the employee's mother requested that the employer grant the employee a leave of absence during the period of his incarceration. The employer denied this request. The employer encouraged the mother to provide notice to the employer on each day of the employee's absence, which she did.

The employee accumulated at least four "incident days" during the period of his incarceration. The employee was released from jail on August 2, 2003, and reported for work on August 5, 2003. The employer notified him when he reported that he had been discharged for violation of its attendance policy.

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, Inc., UI Hearing No. 91-606281 (LIRC March 24, 1992); Philon v. Guyers Builder Supply Inc.,UI Hearing No. 02603203MW (LIRC Feb. 11, 2003). 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 began the chain of events which resulted in his failure to report to work by incurring the ticket and thereafter failing to satisfy it. See, Brinkman v. J. Stadler Machine, Inc., UI Hearing No. 03401429AP (LIRC Nov. 19, 2003). The employee did not, therefore, have a valid reason for his absences.

The commission has found misconduct under such circumstances even where the employee has provided notice to the employer of his absences (Schweikert, supra). The employee argues that he was led to believe by the employer's suggestion that his mother call in his absences each day that he would have a job with the employer upon his release. However, the record establishes that the employee, through his mother, requested a leave of absence for the period of his incarceration and the employer denied this request. Moreover, it is obvious that the intent of the employer's suggestion was to provide the employee the opportunity to extend to the maximum possible length his period of compliance with the employer's attendance policy, and, as a result, his period of employment, rather than to have it cut short by incurring no call/no show absences.

Finally, the employee had reason to be aware that his job was in jeopardy due to his acknowledged receipt (exhibit #2) of a copy of the employer's attendance policy.

The commission therefore finds that, in week 32 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 $4,440 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.

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 32 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 $4,400 to the Unemployment Reserve Fund.

The benefit checks for weeks 32/03 through 37/03 and $180 of the benefit check for week 38/03 were forfeited. Since benefits are now denied for such weeks, they cannot be applied to the forfeiture. The amount restored to the forfeiture balance is $1,566.

The initial Benefit Computation (Form UCB-700), issued on August 6, 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 March 17, 2004
lucasto . 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 his decision, because its reversal was not based upon a differing view as to the credibility of witnesses, but instead upon a differing conclusion as to what the hearing record in fact established and upon a differing interpretation of the relevant law.

cc: Attorney John C. Patzke

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uploaded 2004/03/18