PAUL G GRAHAM, Employee

EMMPAK FOODS 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 more than five years as a general laborer for the employer, a meat processing facility. He was discharged on November 1, 2004 (week 44).

The issue is whether the actions for which the employee was discharged constitute misconduct connected with his employment.

The employee was aware of the employee's attendance policy which provides that an employee will be discharged upon the accumulation of 12 attendance points within a rolling 12-month period, and will be assessed 4 attendance points for a no call/no show absence.

The employee received an attendance warning on or around April 14, 2004, for accumulating 4 attendance points for a no call/no show absence.

On October 24, 2004, the employee was stopped for a suspected traffic violation. The law enforcement officer who made the stop discovered that the employee had an outstanding warrant related to a prior conviction, and arrested him as a result. The employee was jailed pursuant to this warrant from October 24 through 31, 2004.

The employee was scheduled to work each day from October 25 through 29, 2004, but did not report to work his shifts those days or provide notice of his absences to the employer.

The employee appeared for work on November 1, 2004, but was advised by the employer that he no longer had a job due to his unsatisfactory attendance.

The first question is whether the separation was a quit or a discharge.

The commission has generally held that a separation resulting from a lengthy absence due to incarceration will be considered a discharge if the employee made a reasonably diligent effort to keep in touch with the employer during this absence and a quit if he did not. See, Brinkman v. J. Stadler Machine, Inc., UI Hearing No. 03401429AP (LIRC Nov. 19, 2003). The employee testified that he made an effort to contact the employer during his incarceration but was not permitted to do so and had no family or others to assist him, and the administrative law judge credited this testimony. This testimony is unrebutted, the employee's version of events is not inherently incredible, and there is no other persuasive basis in the record for overturning the ALJ's credibility determination in this regard. As a result, the commission finds that the employee made a reasonably diligent effort to keep in touch with the employer during his incarceration, and concludes as a result that the separation was a discharge. See, Radke v. TNT Logistics North America Hudson, UI Hearing No. 04200062HU (LIRC June 18, 2004) (separation a discharge where, even though employee did not contact employer during his incarceration, jail only allowed credit card or collect calls and employee did not have credit card and was aware employer did not accept collect calls, no one available to contact employer on employee's behalf, and employee contacted employer immediately upon his release).

The next question is whether the employee was discharged for misconduct connected with his employment.

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, or is otherwise responsible for the chain of events which led to his arrest/incarceration. 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); 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).

The ALJ finds that "the employee thought that he had taken care of the matter underlying the warrant years before." However, this finding does not appear to accurately reflect the employee's testimony. Instead, the totality of the employee's testimony in this regard appears to be that he had been convicted of an offense in 1995, a warrant had been issued in regard to this conviction, and he was arrested pursuant to this warrant during the October 24 traffic stop.

However, even if the employee had testified that he believed he had taken care of the underlying matter years before, this would not be enough to support a conclusion that he had a valid reason for the absences resulting from his incarceration. The employee offered no evidence to show that the belief he may have formed was a reasonable one, or that he was arrested in error or for actions which he would not reasonably have anticipated would lead to his arrest/incarceration, i.e., the employee offered no evidence to show that he had actually satisfied the sentence imposed by the court in regard to his 1995 conviction, that the information available to him would reasonably have led him to the conclusion that he had satisfied this sentence, or that the warrant had otherwise been issued in error. See, e.g., Radke, supra. (not misconduct where employee had no reason to be aware that eating pizza in a restaurant that served alcohol would violate terms of his probation).

The commission concludes as a result that the record supports a finding that the employee was responsible for the chain of events which resulted in his failure to report to work, and did not, therefore, have a valid reason for his five days of absence. 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 notes that it has found misconduct under such circumstances even where the employee has provided notice to the employer of his absences (Schweikert, 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 (Schweikert, supra; Philon, supra).

The commission therefore finds that, in week 44 of 2004, 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 $4806.00 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 44 of 2004, 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 $4806 to the Unemployment Reserve Fund.

The initial Benefit Computation (Form UCB-700), issued on November 3, 2004, 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 15, 2005
graha . urr : 115 : 4   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.

cc: Emmpak Foods Inc.

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