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

DEAN K SOSSAMAN, Employee

UNITED PARCEL SERVICE INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05607263WK


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 about seven years as a preloader for the employer, a national and international mail and package delivery service. He was discharged on March 17, 2005 (week 12).

The initial issue to be decided is whether the employee quit or was discharged. If the employee quit, a secondary issue is whether the employee's quitting was for any reason that would permit the immediate payment of unemployment benefits. If the employee was discharged, a secondary issue is whether the employee's discharge was for misconduct connected with that employment.

On March 12, 2004 the employee had plead guilty/no contest to a disorderly conduct violation (domestic dispute). The employee was then sentenced to 90 days of jail time. The employer would not accept collect calls. The union contract provided that an employee would be terminated if the employee failed to report to work for three consecutive working days and did not properly notify the employer at the beginning of his starting time on the third day. The employee was absent without notice on March 15, 16 and 17 of 2004. Pursuant to the union agreement, he was discharged on March 17, 2004 (week 12).

The issue to be decided is whether the employee was discharged for misconduct connected with his work for the employer. 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 insurance 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."

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. 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); and Brinkman v. J. Stadler Machine, Inc., UI Hearing No. 03401429AP (LIRC Nov. 19, 2003). In this case, the employee set in motion the chain of events which resulted in his inability to report to work by engaging in an altercation with his ex-wife, which in turn led to his incarceration. The employee was aware that three consecutive days of absence without notice to the employer would result in his termination. The employee did not, therefore, have a valid reason for his absences.

The commission therefore finds that in week 12 of 2004 the employee was discharged from his employment and for misconduct connected with his work within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employee was paid benefits in the amount of $4110.00, of which $274.00 is included in a decision dated September 14, 2005, for weeks 12 through 26 of 2004, for which the employee was not eligible and to which the employee was not entitled, within the meaning of Wis. Stat. § 108.03(1). In addition, $119 of benefits paid in week 26 of 2004 was applied to the employee's forfeiture balance and is restored to that balance if the employee is required to repay benefits received in that week.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 12 of 2004, and until seven weeks elapse since the end of the week of discharge and the employee earns wages in covered employment after the week of discharge equaling at least 14 times the weekly benefit rate that would have been paid had the discharge not occurred. The employee has been overpaid benefits in the amount of $4110.00. The employee has requalified as of week 33 of 2005. No testimony was adduced at the hearing regarding the issue of whether the employee was erroneously paid benefits that must be repaid to, or waived by, the department. Accordingly, that issue will be remanded back to the hearing office for a hearing and decision.

Dated and mailed November 6, 2006
sossade . urr : 132 : 1 :  MC 605.091

James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The commission did not consult with the ALJ who presided at the hearing regarding his impressions of witness credibility and demeanor. The employer's testimony and the employee's testimony were not in disagreement. The commission has reversed the ALJ based on the above findings which are supported by the testimony adduced at the hearing.

cc: United Parcel Service, Inc. (Elm Grove, Wisconsin)


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