JAMES C CLEVELAND, Employee

PATRICK CUDAHY INC, 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 the employer, a meat packer/scaler, for approximately two and one-half years. His last day of work was October 21, 2006 (week 42).

Beginning on October 23, 2006, the employee was on a 30-day leave of absence. The employee was incarcerated for failing to pay a fine due to a driving offense committed in 2001. He was held in jail until January 9, 2007. On November 22, 2006 (week 47), the employer sent the employee a letter informing him that he could no longer retain his seniority or tenure with the employer because he had exhausted the 30-day leave.

The employer's policy notifies employees that a worker with one year or more seniority with the employer can receive a personal leave of absence for good and sufficient reason. The policy further notifies workers that, "An employee who is granted such Leave and fails to report for work upon the termination of such Leave of Absence shall be considered as having quit, unless the employee's failure to report is due to circumstances beyond his control, such as a train accident, etc."

In Schweikert v. Ganton Technologies, Inc., UI Dec. Hearing No. 91-606281 (LIRC March 24, 1992), the commission found that the eligibility of an employee who is incarcerated, and is discharged because he is unavailable for work, should be resolved under Wis. Stat. § 108.04(5), and not Wis. Stat. § 108.04(1)(b)1. In Schweikert, the employee was incarcerated because he failed to pay a fine relating to a traffic offense. The employee argued that his absence from work was beyond his control. The commission rejected such argument stating:

In a practical sense, the employe's ability to get out of jail and go to work was beyond his control after he knowingly and intentionally failed to pay his fine. Yet the critical time when the employe was in full control of the situation was before he chose [to]operate a vehicle while under the influence and thereafter during the year or two when he chose not to pay the fine.

In this case, the employee would not have been incarcerated if he had paid the fines resulting from an offense that occurred five years earlier. The employee did not appear at the hearing to explain his failure to fulfill his legal obligations. The employee's inability to appear for work was not due to circumstances beyond his control.

The commission, as it did in Schweikert, quotes from the court's memorandum decision in Joe D. Culp v. Consumers Steel and Supply Co., and Ind. Comm. of Wisconsin, Dane County Circuit Court (December 11, 1958):

"An employee who wilfully and intentionally starts the chain of events which created circumstances making him unavailable is certainly the defaulting actor. In determining the question of availability, the end result must be directly related to the beginning of the course of conduct. In this and in similar cases he is acting inconsistently with the continuation of the employee-employer relationship. It would be contrary to the policy and purpose of the legislation providing for unemployment compensation to cast that burden of a self-created disadvantage of and by the employee onto the shoulders of the employer, by leaving him with work to be done and no available employee to do it. The work was present July 1st and continued to be. On July 6th the employer notified the Union, of which the Employee was a member, and the plaintiff of the discharge. In the Memorandum Decision of the Industrial Commission, it is said:

'(MEMORANDUM: Although prior appeal tribunal and Commission decisions have held that employees who were arrested and incarcerated for an appreciable period of time because of off-job conduct were not discharged for misconduct connected with their employment, we feel that such decisions were in error.

'Many of our decisions regarding absenteeism from work hold that employees who absent themselves from work, with or without prompt notice to the employer, were discharged for misconduct connected with their employment if the absences were for invalid reasons.

'The arrest of an employe for off job conduct is not per se misconduct connected with employment. Depending upon the reason for the arrest and the nature of the employe's duties, it may be considered misconduct connected with employment if under the circumstances, it directly affects his suitability for his work. This would be so even if no appreciable absence from work resulted. However, if the nature of the arrest does not affect an employe's suitability for work, then the question is resolved by considering the resulting absence from work. If it does not affect suitability and does not result in an appreciable absence from work, it is not considered misconduct connected with employment.

'In the instant case the crime for which the employe was arrested was not connected with his employment. However, the result of his being arrested and incarcerated made it impossible for him to work for a period of at least three weeks, and his absence is deemed to be connected with his employment and is for an invalid reason.)"

"The doctrine followed by the commission prior to 1956 was never wholly settled. There have been contrary interpretations and valid precedents exist which now have been accepted in this case. The reasoning which is to be followed is set forth in the Commission's brief and it refers to the case of Howes Bros. v. Unemployment Compensation Com., 296 Mass. 275. It reads as follows:

'Reasoning:

'To grant an employee's benefits where his employment has been terminated as a result of imprisonment for consequence of his own crime is against public policy. The failure of the respondent to report to work was due to the criminal failure of respondent to perform his obligations under the law. The law will not assist a person to gain alleged rights where there has been a criminal failure to perform his legal obligations. By his own conduct the employee voluntarily placed himself in jeopardy. The Legislature of this State, I believe, never intended that a man who was sent to prison for a wilful criminal act should be entitled to unemployment compensation benefits without reservation. "Unemployment compensation differs from relief in that payments are made as a matter of right . . . payment of compensation is conditional upon continued involuntary unemployment . . . The design of the Act is to afford relief to those who have been . . . thrown out of work through no fault of their own." To insure a man who has been sentenced to jail for the commission of a crime against the resultant loss of his job would appear to subvert the purposes for which the unemployment compensation law was enacted.'

"The rule of stare decisis does not control so as to prevent the action of the Commission. Rights are not so involved as to make the misinterpretation a rule of property. Reiter v. Grober, 173 Wis. 493.

"The Statute creates a relation of employment which affords an employee the 'privilege based on his availability to render services. This opportunity exists under prescribed conditions and the benefits are not to be claimed when an employee fails to perform his part. There is a positive relation between the work opportunity and the availability of the employee. If he, the employee, places himself so as to be unable to do his share in maintaining the relationship, the failure is his. He cannot tear the relationship to pieces and offer his guilt of a felony as a reason to excuse his default.

"I am, therefore, of the opinion that the employe was discharged for misconduct related to and connected with his employment. The employee, by his conduct off the job, set in motion, as the Commission contends, a series of events which prevented him from reporting for work an extended period, resulting from his off-the-job conduct. It resulted in his incarceration and prevented him from performing his duties for the employer. It must be regarded and treated as an intentional and substantial disregard for the employer's interest, violating the standard of behavior which the relation requires of an employee. The decision of the Commission is affirmed in all respects."

The employee's failure to meet his legal obligations resulted in an appreciable absence from work. Such appreciable absence from work for invalid reasons demonstrated an intentional and substantial disregard of the employer's interests and of the employee's duties and obligations to the employer.

The commission therefore finds that in week 47 of 2006 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 $5,694.00 for weeks 2 through 27 of 2007, for which the employee was not eligible and to which the employee was not entitled, within the meaning of Wis. Stat. § 108.03(1).

The final issue to be decided is whether recovery of overpaid benefits must be waived.

Wis. Stat. § 108.22(8)(c), provides that the department shall waive the recovery of overpaid benefits if the overpayment was the result of departmental error, and the overpayment did not result from the fault of the employee. Under Wis. Stat. § 108.02(10e)(a) and (b), departmental error is defined as an error made by the department in computing or paying benefits which results from a mathematical mistake, miscalculation, misapplication or misinterpretation of the law or mistake of evidentiary fact, by commission or omission, or from misinformation provided to a claimant by the department, on which the claimant relied.

The overpayment in this case results from the commission's reversal of the appeal tribunal decision. Such reversal was not due to departmental error as defined in Wis. Stat. § 108.02(10e)(a) and (b).

The commission further finds that waiver of benefit recovery is not required under Wis. Stat. § 108.22(8)(c), because although the overpayment did not result from the fault of the employee as provided in Wis. Stat. § 108.04(13)(f), the overpayment was not the result of a departmental error. See Wis. Stat. § 108.22(8)(c)2.

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 47 of 2006, 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 is required to repay the sum of $5,694.00 to the Unemployment Reserve Fund. The initial benefit computation (UCB-700) issued on January 9, 2007, is set aside. If benefits become payable based on work performed in other covered employment a new computation will be issued as to those benefit rights.

For purposes of computing benefit entitlement: Base period wages from work for the employer prior to the discharge shall be excluded from any computation of maximum benefit amount for this or any later claim. If the employee was also paid base period wages from work by other covered employers, the excluded wages shall be used to determine benefit eligibility. However, any benefits otherwise chargeable to a contribution employer's account shall be charged to the fund's balancing account.

Dated and mailed July 20, 2007
cleveja . urr : 132 : 8 : MC 605.091

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

The commission did not consult with the ALJ regarding witness credibility and demeanor. The employee did not appear at the hearing in this matter. The commission has adopted the ALJ's findings of fact. The commission disagrees with the ALJ's legal conclusions.

NOTE: Repayment instructions will be mailed after this decision becomes final. The department will withhold benefits due for future weeks of unemployment in order to offset overpayment of U.I. and other special benefit programs that are due to this state, another state or to the federal government.

Contact the Unemployment Insurance Division, Collections Unit, P. O. Box 7888, Madison, WI 53707, to establish an agreement to repay the overpayment.

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