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

RICHARD L SWEENEY II, Employee

GREDE FOUNDRIES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03008561BO


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 for the employer, a foundry, for three years, most recently as an inspector. His last day of work was August 28, 2003. The employment relationship was terminated on September 4, 2003 (week 36).

In December of 2002, the employee received a written warning for attendance violations. On July 28, 2003, the employee missed a day of work without notice and received another written warning. He was generally advised that continued "non-standard performance" would result in corrective action up to and including discharge.

The employee was on probation for an offense relating to possession of THC and paraphernalia. As a condition of his probation, the employee was prohibited from consuming alcohol. The employee had violated this rule and had received a warning. He was aware that further violations of his probation could result in the revocation of his probation. On August 29, 2003, the employee's probation was revoked because he again consumed alcohol in violation of the rules of the probation, and the employee was incarcerated.

During his incarceration the employee attempted to call the employer, but the employer would not accept collect calls. The employee therefore had his father call the employer on his behalf. On August 29, 2003, the employee's father notified the employer that the employee would be absent because he was in jail. The employee's father explained that the employee was unable to call personally. On the employee's next scheduled work day, Tuesday, September 2, the employee's father called again and reported that the employee was still unable to work. He explained that the employee was working to get Huber privileges so that he could get back to work. The employer's human resource assistant advised him that the employee would be discharged if he was not back at work by Friday, September 5. However, on Thursday, September 4, the employer decided to terminate the employment relationship based upon the employee's failure to report for work for three consecutive days. On Friday, September 5, the employee had his hearing and was placed on Huber privileges. When the sheriff's office contacted the employer to verify his employment, the employer explained that the employee's employment had been terminated the previous evening.

The initial question to decide is whether the employee quit or was discharged. The evidence in the record does not support a finding that the employee intended to quit his employment. The employee attempted to provide personal notice of his absences to the employer, but was unable to do so because the employer would not accept collect phone calls. He therefore had his father call the employer on his behalf. The employee diligently pursued Huber privileges, and would have returned to work for the employer had it not made the decision to terminate the employment relationship. Under all the circumstances, the commission concludes that the employee was discharged by the employer.

The next question to decide is whether the employee's discharge was for misconduct connected with his employment. In Boynton Cab v. Neubeck, 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 employe, 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 employe'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' within the meaning of the statute."

The employee was discharged because of his unavailability for work due to his incarceration. The commission has consistently held that incarceration is not a valid reason for absence if it is due to the employee's fault. The standard for evaluating fault is whether the employee wilfully and intentionally started the chain of events which led to his being unavailable for work. Hyler v. Regal-Beloit Corp. (LIRC, Aug. 27, 1997); Schweikert v. Ganton Technologies, Inc. (LIRC, March 24, 1992). Here, the employee was on probation for possession of THC and paraphernalia. A condition of his probation was that he not drink alcohol. The employee had violated the no drinking rule on a previous occasion, and was aware that a repeat offense could result in revocation of probation. Under the circumstances, the commission concludes that the employee knowingly set into motion the chain of events that caused him to be absent for more than three consecutive days. The employee had received a warning about his attendance only a month earlier and knew that the employer was concerned about his attendance. The employee's actions in missing work for an appreciable period of time for invalid reasons, while on notice that the employer was concerned about his attendance, demonstrated an intentional and substantial disregard of the employer's interests and the standards of conduct the employer had a right to expect of him.

The commission, therefore, finds that in week 36 of 2003, 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 modified to find a discharge and, as modified, is affirmed. Accordingly, the employee is ineligible for benefits beginning in week 36 of 2003 and until seven weeks have elapsed since the end of the week of discharge and he has earned wages in covered employment performed after the week of discharge equaling at least 14 times his weekly benefit rate which would have been paid had the discharge not occurred. There is no overpayment as a result of this decision.

The initial benefit computation (UCB-700) issued on November 12, 2003, 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.

Dated and mailed June 10, 2004
sweenri . urr : 164 : 1 VL 1007.05  MC 605.091

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The commission recognizes that this decision results in a longer suspension of benefits than resulted from the decision issued by the appeal tribunal. As the appeal tribunal clearly explained in its decision, a finding that the employee was discharged rather than quit would result in a more severe disqualification, because the evidence indicated that, if a discharge occurred, it was for misconduct connected with the work. The employee nonetheless petitioned for review, taking the position that he did not quit, and the commission is compelled to agree. Consequently, the commission is constrained to issue a decision imposing a longer benefit suspension than that originally in effect.

cc: Grede Foundries, Inc. (Reedsburg, Wisconsin)


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uploaded 2004/06/16