SHARON K MUELLER, Employee

TRANE CO, 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 for over 26 years as a welder for a commercial air-conditioning business. Her last day of work was August 10, 2005 (week 33), when she was suspended. She was discharged on August 23, 2005(week 35). She was reinstated following a grievance proceeding on September 21, 2005 (week 39).

On August 8, 2005, the employee was caught smoking during the period between the end of a safety meeting and the beginning of her scheduled shift. The employee was in pay status at the time and this was a violation of an employer rule, which she had been disciplined for in the past. The employee acknowledged that she was at fault. The employer suspended the employee for two weeks and then discharged her. She returned to work without loss of seniority on September 21, 2005.

The commission has consistently held that it will treat a discharge that at the time of hearing has been converted into a suspension without pay, and without loss of seniority, as a statutory suspension under Wis. Stat. § 108.04(6). Cornelius Hall v. Milwaukee Transport Services Inc., (LIRC Jan. 11, 1996), Seach v. United Parcel Service Inc, U I Hearing No. 03004424JV (LIRC Mar 2, 2004).

By the time of the hearing, the employee had been reinstated to her employment without loss of seniority. Consequently, the commission finds that she was not discharged for misconduct connected with her employment. She was suspended.

The commission therefore finds that in week 35 of 2005, the employee was not discharged from her employment within the meaning of Wis. Stat. § 108.04(5).

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 35 of 2005 if she is otherwise qualified.

Dated and mailed January 31, 2006
muellsh . urr : 178 : 1 MC 676  MC 676.2

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

The commission has reversed the appeal tribunal decision as a matter of law. In a companion decision, the employee's ineligibility due to her suspension was increased to include weeks 35 and weeks 36. Those weeks were originally included in this decision, but they were in fact part of the employee's continuing suspension.

cc: Attorney Russell Hanson

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uploaded 2006/02/03