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

BENJAMIN W RADKE, Employee

TNT LOGISTICS NO AMERICA HUDSON, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04200062HU


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 more than 15 months as a material handler for the employer, a transportation company. His last day of work was November 25, 2003 (week 48).

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

The employee was a no call/no show for two consecutive work shifts because he was arrested and incarcerated on a probation hold.

This incarceration did not result from the employee's culpable conduct. Although he concedes that the terms of his probation for a third DUI (driving under the influence) conviction prohibited his presence in a bar, at the time of his arrest he was having pizza at a restaurant that served alcohol, not at a bar. The employee reasonably believed that his presence there was permitted as long as he did not order or consume alcohol.

The employee was only allowed to make collect or credit card calls from the jail. The employee was aware that the employer did not accept collect calls. The employee did not have a credit card. The employee attempted to reach his neighbor to ask him to call the employer for him but the neighbor was out of town. The employee lived alone and there was no one else whom he could contact to make such a call for him.

The employer's no-fault attendance policy provides for termination upon the accumulation of 12 points. If an employee does not accumulate points over a period of time, points are subtracted from his total. According to the employer, the employee had accumulated 3.5 points prior to the two no call/no show absences at issue here. These two absences counted for 6 points apiece. The employee's attendance record for 2003 shows that he was assessed points on 10/27/03 and 10/1/03 for absences due to car trouble (2 points each); on 10/21/03, 2/27/03, and 1/6/03 for absences for which he called in (these were considered excused and were assessed 2 points each); on 9/9/03 for illness (1 point); and on 5/20/03, 4/3/03, and 2/20/03 for tardiness (.5 points each).

The separation was a discharge. The employee here was unable to contact the employer due to the limitations on phone access imposed by the jail, his knowledge that the employer did not accept collect calls, his lack of a credit card, and the absence of the only person who he believed would be willing to call the employer on his behalf. In addition, the employee contacted the employer immediately upon his release. Finally, unlike those cases in which the commission has concluded that the employee quit when he caused his unavailability for work by engaging in conduct which he should reasonably have predicted would result in his incarceration, the record here does not support a conclusion that the employee should have been aware that eating pizza in a restaurant that served alcohol was a violation of the terms of his probation.

The final question is whether the employer sustained its burden to prove misconduct. As discussed above, the record does not support a conclusion that the employee's actions in December of 2003 which resulted in his two no call/no show absences were blameworthy. In addition, his absences in calendar year 2003 for which points were assessed were generally for valid reasons or were excused, and he had not been tardy since 5/20/03. The employee's overall attendance record does not support a conclusion the he engaged in misconduct.

The commission concludes that, in week 48 of 2003, the employee did not voluntarily terminate work with the employer within the meaning of Wis. Stat. § 108.04(7)(a); but was discharged, within the meaning of Wis. Stat. § 108.04(5), and this discharge was not for misconduct connected with the employee's work.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 48 of 2003, if otherwise qualified.

Dated and mailed June 18, 2004
radkebe . urr : 115 : 1   VL 1007.05 MC 605.091 

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, 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.


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uploaded 2004/06/21