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

JAY D ALBRECHT, Employee

FARM & FLEET OF MONROE INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05003647JV


On September 14, 2005, an administrative law judge of the Department of Workforce Development issued an appeal tribunal decision finding that in week 27 of 2005 (the week ending July 2, 2005), the employer discharged the employee but not for misconduct connected with his employment, within the meaning of Wis. Stat. § 108.04(5). The employer filed a petition for commission review and on December 5, 2005, the commission issued a decision affirming the appeal tribunal decision. The employer subsequently requested that the commission exercise its statutory discretion to reopen the case, based on the employee's entry of "no contest" pleas to four misdemeanor charges arising out of the events of June 23, 2005. The commission denied this request.

The employer appealed the commission's decision allowing benefits to Green County Circuit Court, and on August 15, 2006, Circuit Judge James R. Beer issued a decision that reversed the commission decision and remanded the matter to the commission for further proceedings. The commission appealed the circuit court decision to the Court of Appeals, District IV. On April 26, 2007, the court of appeals issued a decision that reversed the circuit court's holding that the employer had demonstrated that the employee's actions constituted misconduct under Wis. Stat. § 108.04(5). The court of appeals further held that the case was remanded to the commission for reconsideration of its decision that denied the employer's request to reopen the matter. On June 11, 2007, Judge Beer issued an order implementing the holdings of the court of appeals.

On June 15, 2007, acting pursuant to the court holdings and its discretionary authority under Wis. Stat. § 108.09(6)(b) and (d), the commission remanded the matter for additional evidence as outlined in the remand order. On August 1, 2007, a hearing was held before Administrative Law Judge David P. Jenkins, pursuant to the commission's order. The record of that hearing, together with the prior case record, are before the commission for new decision.

Based on the applicable law and records in this case the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked for three years as a tire mechanic for the employer, Farm & Fleet of Monroe, Inc. His last day of work was June 23, 2005 (week 25).

On Thursday, June 23, 2005, after completion of his shift with the employer, the employee went home to his parents' house and became involved in an argument with his father. The argument escalated when the employee's father refused to allow the employee to use the telephone. At that point the employee threw the telephone to the floor, and angrily and intentionally struck his father two or three times in the head with his fist. The father indicated that he was going to call the police, and the employee took his father's car and left the house. The employee's mother did call the police. After driving around the city the employee attempted to return to the house, but in the process was involved in an accident in which the car he was driving collided with a pursuing police car. He was thereupon arrested, charged with four misdemeanor counts, and incarcerated until being released on bond on Monday morning, June 27, 2005. On November 29, 2005, the employee pled no contest to each of the four misdemeanors.(1)

The employee was scheduled to work on the Friday, Saturday, and Sunday following his incarceration, but was unable to work because he was in jail. At the employee's request, his father telephoned the employer's store manager that Friday morning and informed him of the employee's incarceration. The employer has a rule that an employee who is absent for three consecutive workdays without a valid excuse is considered to have voluntarily terminated his/her employment. The employer has terminated a number of employees for violation of this three-day rule. At the time of the employee's termination, the employer was aware of the fact that he had been incarcerated, but could not have known whether or not he was guilty of the charges brought against him. When the employee telephoned the employer around noon on Monday, June 27, 2005, and asked about his employment status, the employer informed him that he had been terminated.

The employer failed to provide competent evidence of misconduct at the original administrative hearing held in this matter on September 12, 2005. However, the employee's own testimony together with his father's testimony given at the remand hearing held on August 1, 2007, constitute firsthand evidence of misconduct in the form of intentional behavior that led to the employee's incarceration and absences from work. The employee deliberately struck his father in the head and took off from the house in his father's car, thus initiating the chain of events that led to his incarceration. His actions constituted a willful, intentional, and substantial disregard of the employer's interests, because it was reasonably foreseeable that those actions could lead to incarceration and missed work time.

The commission therefore finds that in week 27 of 2005, the employer discharged the employee for misconduct connected with his employment, within the meaning of Wis. Stat. § 108.04(5). The commission further finds that the employee was paid unemployment benefits totaling $4,602.00 for weeks 28 through 53 of 2005, for which he was not eligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03(1); and that pursuant Wis. Stat. § 108.22(8), he is required to repay the sum of $4,602.00 to the Unemployment Reserve Fund.

The commission further finds that waiver of benefit recovery is not required under Wis. Stat. § 108.22(8)(c), because the overpayment was not the result of departmental error.

DECISION

The commission's decision of December 5, 2005, is set aside, and the appeal tribunal decision of September 14, 2005, is reversed. Accordingly, the employee is ineligible for unemployment benefits beginning in week 27 of 2005, and until seven weeks have elapsed since the end of the week of discharge and he has earned wages in covered employment performed after the week of discharge equaling at least 14 times his weekly benefit rate which would have been paid had the discharge not occurred. The employee is required to repay the sum of $4,602.00 to the Unemployment Reserve Fund.

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 November 28, 2007
albreja . upr : 185 : 8  MC 605.091 PC 714.11

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

 

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.

 

MEMORANDUM OPINION

This case presents the difficult circumstance of an employer with an employee who missed three consecutive days of work due to incarceration, but at the time of discharge the employer did not know whether the employee's incarceration was justified. At the time of the first administrative hearing held in this matter on September 12, 2005, the employer could not have known the outcome of the criminal charges brought against the employee, because those charges were not resolved until the plea agreement was reached on November 29, 2005. However, the commission notes that criminal pleas, and even criminal judgments, are of no value to employers in proving misconduct under Wis. Stat. § 108.04(5). Wis. Stat. § 108.101(4) provides:

"No finding of fact or law, determination, decision or judgment in any action or administrative or judicial proceeding in law or equity not arising under this chapter made with respect to the rights or liabilities of a party to an action or proceeding under this chapter is binding in an action or proceeding under this chapter."

This statute unambiguously provides that the results of proceedings in law not arising under Chapter 108 (such as the criminal proceedings that arose in circuit court against the employee), are not binding in a proceeding under Chapter 108. Accordingly, no finding of fact, no plea of any kind, and no judgment rendered in any criminal proceeding may be used to provide issue preclusion or claim preclusion in an unemployment insurance benefit proceeding held pursuant to Wis. Stat. § 108.09. Unemployment insurance eligibility must be resolved in the administrative forum established in Wis. Stat. § 108.09(1) through (6), subject to the judicial review provisions of Wis. Stat. § 108.09(7). All factual evidence in support of an allegation of ineligibility for unemployment benefits must be presented as competent evidence at the Chapter 108 administrative hearing.

When an employer chooses to discharge an employee for what the employer believes is misconduct under Wis. Stat. § 108.04(5), that employer must be prepared to submit competent and credible evidence supporting the allegation of misconduct at every level of the administrative adjudication of the claim. If the employer fails to carry its burden, even if that is because the necessary evidence is not available to the employer, unemployment benefits must be allowed. If an employer believes that unavailable evidence may later become available, it should pursue the appeal process through the commission level. The commission has discretionary authority under Wis. Stat. § 108.09(6)(c), to set aside its decision and reopen the eligibility claim for two years after the issuance of its decision. If within that two-year period an employer demonstrates to the commission that it has obtained newly discovered evidence, (2) the commission may exercise its discretion to reopen the matter.

Aside from the effect of Wis. Stat. § 108.101(4), case law also limits the usefulness of criminal pleas and proceedings in unemployment insurance eligibility proceedings. In In Matter of Estate of Safran, 102 Wis. 2d 79, 95, 306 N.W.2d 27 (1981), the court approved the "traditional rule" that neither pleas of any kind, nor judgments of conviction in criminal prosecutions, are admissible in subsequent civil proceedings as evidence of the facts upon which the plea or judgment was based. This "traditional rule" appears to have been modified to some extent by the holding of Michelle T. Crozier, 173 Wis. 2d 681, 495 N.W.2d 327 (1993).

In Crozier, the court allowed evidence of a prior criminal conviction of sexual assault into a subsequent civil trial held to resolve the sexual assault victim's claim against the defendant for civil damages. The court held that the evidence of the prior criminal conviction collaterally estopped the defendant from introducing evidence that he had not committed the sexual assault. The court limited its allowance of this use of "offensive collateral estoppel" to the facts of the Crozier case, applying five equities-based factors that the court concluded assured "fundamental fairness" to the defendant. The question of whether or not the Crozier analysis would apply to unemployment insurance eligibility proceedings brought under Chapter 108 is mooted by the specific provisions of Wis. Stat. § 108.101(4), which preclude the use of findings, determinations, decisions, or judgments arising from proceedings held outside Chapter 108.

In Albrecht's case, the employer did not prove misconduct at the first hearing held on September 12, 2005, because it failed to offer competent evidence demonstrating any intentional act by Albrecht leading to his arrest and incarceration, and therefore his absence from work. The employer might have subpoenaed the testimony of one or more of the police officers involved in Albrecht's arrest, and thereby established the basis for his incarceration. The employer failed to do this, and failed to submit any other competent evidence establishing the reason(s) for Albrecht's arrest and incarceration.

After the courts' remand the commission chose to exercise its statutory discretion to reopen the matter and receive additional evidence. This discretionary decision was taken because the commission concluded that the record was unclear regarding the facts of what had occurred, and the commission desired to obtain the truth. At the remand hearing held in accordance with the commission's order, Albrecht and his father offered firsthand testimony concerning the events of June 23, 2005. Their testimony unequivocally demonstrated that Albrecht's willful and intentional actions the evening of June 23, 2005, initiated the chain of events that resulted in his incarceration and absences from work. In essence, their testimony carried the employer's burden of demonstrating misconduct, making the commission's finding of misconduct inevitable.

cc:
Farm & Fleet of Monroe, Inc. - Monroe, WI
Gary Hilt
Attorney George Steil, Jr.



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Footnotes:

(1)( Back ) The four misdemeanors were: (1) Criminal Damage to Property; (2) Resisting an Officer; (3) Attempted Battery; and (4) Causing Bodily Harm to Another by the Negligent Operation of a Vehicle.

(2)( Back ) There are five requirements for evidence to be accepted as newly discovered: (1) the evidence must have come to the moving party's knowledge after trial (in this case hearing); (2) the moving party must not have been negligent in seeking to discover it; (3) the evidence must be material to the issue; (4) the testimony must not be merely cumulative to the testimony introduced at the trial; (5) it must be reasonably probable that a different result would be reached with a new trial. Lock v. State, 31 Wis. 2d 110, 117, 142 N.W.2d 183 (1966).

 


uploaded 2007/12/07