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

AARON M BLACKHAWK, Employee

AEROTEK INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05401660AP


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 about eight months as a painter/helper on a work assignment with a client of the employer, a temporary employment agency. His last day of work for the employer, and the date of his discharge, was May 6, 2005 (week 19).

The employer's policies required that the employee directly notify the employer as soon as feasible of any absence from his scheduled work with the employer's client and/or of any instance of tardiness for work exceeding five minutes. The employer's policies further specified that absence without notice to the employer for two consecutive days "will be considered a resignation."

The employee had arranged with the employer's client for the client's permission to be absent from his regularly scheduled work on April 15, 2005, so he could attend a court date in Iowa. He was absent from work on the following Monday, April 18, because two of his car tires had been vandalized while he was in Iowa that weekend. The following day, on April 19, 2005, he was absent from a portion of his shift because he left work early due to feeling ill. The employee was not required to notify the employer of the fact that he left early, because he notified the client.

On April 27, 2005, the employer's account manager spoke to the employee about his absences and also instructed him to inform her of any absences.

Sometime prior to May 4, 2005, the employee and his wife got into an argument at a gas station. The employee's wife screamed at him and "snatched" his glasses from his face. He grabbed her arm and "snatched" them back. As a result of this dispute, the employee's wife complained to the authorities. She then informed the employee that there was a warrant for his arrest. The employee, on May 3, informed the client of this situation. He told the client he was not certain if there was a warrant out for his arrest so he was going to speak to the police instead of waiting to see if the police came to remove him from his workplace. The employee's supervisor at the client told him to do whatever he needed to do. The employee said, if he did not report to work, he would be in jail. If he showed up for work the next day, there obviously was no warrant.

The employee called the employer's account manager but did not reach her personally, instead he got her voice mail. The employee was too embarrassed to leave a message saying that he might be going to jail. He wished to speak to her directly. The employee then went to the Brown County Sheriff's Department and learned that there was a warrant for his arrest. He was incarcerated until May 5, when he posted bond.

On May 6, 2005, he reported to work at the client. He worked for over six hours when he was notified he was discharged. He left the client's premises and did not again perform work for the employer.

The initial issue to be decided is whether the employee quit or was discharged.

Both parties agreed that the employee did not quit, but was discharged. The commission agrees. The employee informed the client that he might potentially be absent from work. The client indicated he should do what he needed to do. The employee attempted to contact the account manager, but was unable to reach her. Further, at the time the employee was not certain he would even be absent the next day. After he was released, the employee reported to work and worked for most of his shift when the employer informed him he had been discharged. The employee did not give formal notice of quitting and his actions were not inconsistent with the continuation of the employment relationship.

The next issue that must be decided is whether the employee's discharge was for misconduct connected with his work.

In Boynton Cab Co. v. Neubeck & Ind. Comm., 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 employee, 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 employee'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' with in the meaning of the statute."

The employee testified that his absence was unavoidable, and suggested that his wife's actions in complaining of a domestic dispute were retaliatory in nature, rather than as a result of any violent behavior on his part. The employee notified the client that he was absent and was given permission to take care of the matter. The employee attempted to notify the employer but was reluctant to leave a voice mail message explaining the situation. While he should have overcome his embarrassment and informed the employer that he might be absent, his failure to do so, and his attendance record as a whole, did not amount to such a willful and substantial disregard of the employer's interests as to constitute misconduct connected with his work.

The commission therefore finds that in week 19 of 2005, the employee was discharged by the employer but not for misconduct connected with his work within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 19 of 2005, if otherwise qualified.

Dated and mailed September 30, 2005
blackaa . urr : 145 : 1 MC 605.091

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The commission discussed witness credibility and demeanor with the ALJ who held the hearing. The ALJ said that with respect to demeanor, there was nothing that stood out to suggest that either witness was not credible. However, the ALJ did not find the employee particularly credible when he testified he did not know whether a warrant had been issued. The ALJ concluded that the employee knew he would be absent for at least a few days. However, the commission found that the employee was credible. The employee provided a great deal of information about the incident that resulted in the issuance of a warrant. The employee specifically testified that it was his wife who informed him that there was a warrant for his arrest and that he did not believe, under the circumstances, that she was a particularly trustworthy source.


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