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

JAMES J NICK, Employee

MANPOWER, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07003012JV


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 almost five and one-half months as an electronic assembler for the client employer of the employer, a temporary and permanent employment agency. His last day of work was March 16, 2007 (week 11). He filed a new initial claim on June 12, 2007 (week 24).

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.

During the employee's employment with the employer the employee was on probation for two years, and the conditions of his probation included not associating with minors and not being in places where alcohol was available. On March 16, 2007, the employee was jailed on a probation hold issued by his agent because he had gone to a pool hall which did not serve alcohol and which minors were known to frequent. The employee was incarcerated because it appeared that there were minors at the pool hall. There was no revocation action initiated after the employee's incarceration.

The employee was scheduled to work on March 17, 2007. On Monday, March 19, 2007, the employee's mother called the employer and said he would not be at work because he had been picked up because of a probation violation. On Wednesday, March 21, 2007, the employee's mother notified the client that the employee would not be at work, but failed to provide notice to the employer. The employee did not report to work for the client, but came to the employer's place of business on Thursday, March 22, 2007. The employer explained that the client no longer wanted the employee to work for it because of this last series of absences and because of prior attendance violations. The employer instructed the employee to think about the situation and asked him if he would like another assignment. The employer offered the employee another position on about April 2, 2007. The employee toured the client on April 4, (week 14) but did not get back to the employer. When the employer contacted the employee he said he could not accept the assignment because his probation officer would not let him work overtime. After the employee declined the assignment, the employer spoke to the employee again because the employee said he could not accept the assignment because of his probation officer. The employer called the employee to ask whether it could talk to the probation officer about this but the employee said this was not a possibility. The employee thereafter failed to contact the employer until July 27, 2007.

The employee in this case was on probation. The employee agreed that it was likely that a place that did not serve alcohol would cater to minors, and the ALJ did not find his assertion that he was not aware that there were minors frequenting the pool hall to be credible. The employee was or should have been aware that he risked being incarcerated if he went to a place frequented by minors as he was forbidden to have contact with them. Further, the employee failed to have his mother provide proper notification of his absences on March 17, as well as on March 20 and 21, 2007. The employee's actions in violating the terms of his probation had the foreseeable result that he would be incarcerated, and possibly that his probation would be revoked. After the employee was released from jail, he and the employer discussed his future employment. The employer informed the employee that he was a good employee but he had some attendance and other issues. The employee asked the employer if there was other work. The employer said it would redo his application process and/or rehire him and that the employee should make certain that he really wanted to continue working for the employer. The employer thereafter offered the employee a position. The employee toured the customer's premises and turned down the employment because the time would not work as far as his probation officer was concerned. The employer asked the employee if it could speak to the probation officer and come to some agreement. The employee declined this offer. The employee's actions in refusing an assignment and in failing to see whether the employer would be able to work something out with the probation officer were inconsistent with the continuation of the employment relationship. The employer had been willing to work with the employee and the employee's actions in this case were inconsistent with the continuation of the employment relationship and for unemployment insurance purposes constituted a quitting.

The employee did not indicate why he quit or contend that his quitting was for any reason that would permit immediate benefit payment. Essentially, the employee quit for unknown reasons. As such the commission cannot conclude that the employee's quitting was for any reason that would constitute an exception to the quit disqualification.

The commission therefore finds that in week 11 of 2007, the employee's employment was suspended by the employee because he was not able to work. The employee was able to work and available for work as of week 12 of 2007, but as of week 14 of 2007, the employee quit his employment with the employer but not for a reason that would allow immediate benefit payment.

The commission further finds that the employee was paid benefits in the amount of $212 per week for each of weeks 23 through 30 of 2007, amounting to a total of $1,696; for which he was not eligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03 (1), and pursuant to Wis. Stat. § 108.22 (8)(a), he is required to repay such sum 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 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 department error. See Wis. Stat. § 108.22 (8)(c)2.

DECISION

The decision of the administrative law judge is modified and as modified is affirmed. Accordingly, the employee is ineligible for benefits in week 11 of 2007, because he was not able to work. Further, the employee is ineligible for benefits beginning in week 14 of 2007, and until four weeks have elapsed since the end of the week of quitting and the employee has earned wages in covered employment performed after the week of quitting equaling at least four times the employee's weekly benefit rate which would have been paid had the quitting not occurred. The initial determination, number 070391712, issued on July 28, 2007, is inconsistent with the commission's decision and is hereby set aside. The employee is required to repay the sum of $1,696 to the Unemployment Reserve Fund.

Dated and mailed December 13, 2007
nickja . urr : 145 : 1 VL 1025   VL 1007.01

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

Ann L. Crump, Commissioner


MEMORANDUM OPINION

The commission did not discuss witness credibility and demeanor with the ALJ who held the hearing but modified his decision because the commission concluded, based on the record, that the employee quit his employment with the employer.

The employee argues, in his petition for commission review, that the ALJ was biased against the employee. The employee's argument that the ALJ was biased is speculative, and the commission has reviewed the record in this case and has done so without bias against the employee.

The employee further argues that he was denied due process because he was not allowed to have the representative of his choice. The employee's chosen representative was not allowed to represent him because of a potential concern that given the representative's position in the department any ALJ who heard the case could appear to be biased in favor of the employee. The department's concern was reasonable and the fact that the employee did not have the representative of his choice is insufficient to establish that the employee was denied due process.

cc:
Manpower (Watertown, Wisconsin)
William E. Nick
 


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