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


FREDERICK L HOWELL, Employe

QUAD/GRAPHICS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98601537WK


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 the applicable law, records and evidence in this case, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked as a jogger for about five months for the employer, a printer of magazines. His last day of work was September 7, 1997 (week 37).

The first issue to be resolved is whether the employe voluntarily terminated his employment or was discharged by the employer.

After the employe's last day, he was next scheduled to report for work on September 12, 1997. However, he was arrested and incarcerated on September 10, 1997 and was not released until December 22, 1997. When he requested to return to work the employer refused to allow him to return, indicating that it had nothing to fit his qualifications.

Although his arrest was precipitated by his girlfriend calling the police and accusing him of assault and battery, he did not anticipate that such disagreement would lead to his incarceration and subsequent absence. At no time did he advise the employer that he was terminating his employment nor did he intend to terminate his employment. In fact, when he was released, he promptly went to the employer's place of business on the same day and requested permission to return to work. The employer did not appear at the hearing and present evidence indicating it considered him to have quit as a result of his absence. Under these circumstances, he did not voluntarily terminate his employment. The employment relationship was terminated by the employer's refusal to permit him to return to work on December 22, 1997.

The next issue which must be resolved is whether the employe'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' within the meaning of the statute."

The employer did not appear at the hearing and did not indicate why it discharged the employe. The employer never informed the employe of the reason for his discharge. The employer never indicated that it was dissatisfied with the employe's attendance but merely informed the employe that it had nothing to fit his qualifications. The employe was not informed that he would never be considered for employment with the employer as a result of his absence, but in fact the employe saw the employer on December 28, 1997, and January 3 and 6, 1998. In addition, while the employe was on probation when he was arrested and had not paid a series of traffic tickets in excess of $2,000, there is nothing in the record upon which the commission could conclude that the employe had not made arrangements to pay the tickets. In his petition, the employe asserted that he had in fact been on a payment schedule. While the commission cannot make findings based on material in the petition which is not in the record, neither can the commission conclude that the employe failed to make arrangements to pay the tickets when there is no evidence in the record upon which the commission could base such a conclusion. Thus, the commission cannot conclude that the employe's failure to make payments on his tickets demonstrated an act of gross neglect of such degree that it would amount to a deliberate disregard of the employer's interests.

The commission therefore finds that the employe did not terminate his employment in week 37 of 1997, within the meaning of Wis. Stat. § 108.04(7).

The commission further finds that in week 52 of 1997, the employe was discharged 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, as of week 52 of 1997 the employe is eligible for benefits if otherwise qualified.

Dated and mailed: August 18, 1998
howelfr.urr : 145 : 7 MC 626  MC 605.091

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission did not discuss witness credibility and demeanor with the ALJ but instead reverses the ALJ's decision based on its reaching a different legal conclusion based on the facts found by the ALJ.

 

PAMELA I. ANDERSON, COMMISSIONER (Dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. The employer did not show up at the hearing to explain that the employe was discharged for any reason so I would modify the decision and find that the employe quit by abandoning his work and by conduct inconsistent with maintaining the employment relationship.

The employe was arrested for unpaid traffic tickets. He apparently had plead guilty to driving under the influence and then had tickets for driving without a license, parking fines and driving without a seat belt. He was on probation and it was a violation of his probation to have further contact with the police. On September 10, 1997 he was also arrested for battery to his girlfriend. He plead guilty to that charge as well. He was incarcerated from September 10, 1997 until December 22, 1997. The employe testified that he reapplied for work December 28, 1997. When he was incarcerated he did not know how long he would be there. He also got no notice from the employer that they had fired him.

Under these circumstances it is most reasonable to find that the employe quit his employment by conduct inconsistent with maintaining the employment relationship and it was not within any exception that would allow for the immediate payment of benefits. The employe must requalify for benefits.

Pamela I. Anderson, Commissioner


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