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

CLYDE J WEBER, Employee

LEEMAN & MARKO CONSTRUCTION LLP, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05402125GB


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 had worked sporadically for a number of years as a carpenter for the employer, a new home construction business. His last day of work was on June 15, 2005 (week 25).

Every year the employer takes its workers on a fishing trip. The employer pays for the food, lodging and charter boat. The employer paid for the workers' motel rooms the evening of June 15. Prior to going to bed on June 15, the employee and three of his coworkers went out drinking. The employee met a woman and brought her back to his motel room. He was sharing the room with another worker. The woman told the co-worker to leave the room so she could be alone with the employee. The co-worker did so.

The employee told the woman a lie that caused her to leave the room temporarily. The employee then locked the door behind her and refused to let her back in because he was married and felt guilty about the situation. The evidence adduced at the hearing showed that the woman became angry with the employee and called the police falsely accusing the employee of assault. The employee was subsequently arrested. As of the time of the hearing, the employee had not been found guilty of any crime.

The employer asserts that the employee was guilty of misconduct during the fishing trip because he committed adultery. The employee's actions were not connected with his work for the employer. While the employee's actions were morally repugnant to the employer, the commission finds insufficient connection between his actions and his work for the employer to find his actions constituted misconduct connected with his employment. There was no evidence that there was a rule in place that would place the employee on notice that his off-duty personal activities could jeopardize his continued employment.

The commission therefore finds that in week 28 of 2005, the employee did not voluntarily terminate his work for the employer, within the meaning of Wis. Stat. § 108.04(7)(a).

The commission further finds that in week 28 of 2005, the employee was discharged by the employing unit, but that his discharge was 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 28 of 2005, if otherwise qualified.

Dated and mailed March 17, 2006
webercl . urr : 145 : 1  MC 617 MC 618

/s/ James T. Flynn, Chairman

David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The commission did not discuss witness credibility and demeanor with the ALJ who held the hearing because the commission did not reverse the ALJ's decision based on a differing impression of witness credibility and demeanor. Rather, the commission reversed the ALJ's decision because it reached a different legal conclusion from the evidence adduced at the hearing.


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uploaded 2006/03/20