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

THOMAS R SCHAEFER, Employee

COOPER POWER SYSTEMS LLC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07606572WK


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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employee is ineligible for benefits beginning in week 36 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.

Dated and mailed February 8, 2008
schaeth . usd : 135 : 8  VL 1001.09  VL 1007.05

/s/ James T. Flynn, Chairperson

Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

The employee raises several arguments in his petition for commission review and brief. First, the employee argues that he did not quit his job but rather he was made unavailable for work from August 27, 2007 through September 17, 2007, because he was incarcerated without just cause. The employee argues that the employer knew he was in jail on or about August 27 and that he was not going to be released until his next court date. Consequently, the employee argues that it cannot be held that he voluntarily terminated his employment.

An employee may be found to have voluntarily terminated his or her employment despite the fact that the employee has never expressly stated "I quit." For unemployment insurance purposes, a quit can include a situation which an employer actually discharges a worker. Nottelson v. ILHR Dept., 94 Wis. 2d 106, 119, 287 N.W.2d 763 (1980). An employee can voluntarily terminate employment by knowingly refusing to take action that would have allowed his or her employment to continue. Shudarek v. LIRC, 114 Wis. 2d 181, 188, 366 N.W.2d 702 (Ct. App. 1983). An employee may demonstrate an intent to leave his or her employment by word or manner of action, or by conduct, inconsistent with the continuation of the relationship. Nottelson, 94 Wis. 2d at 119; Dentici v. Industrial Comm., 264 Wis 2d 181, 186, 58 N.W.2d 717 (1953).

In this case, the employee failed to make sufficient contact with the employer each time he missed a scheduled work shift which he was required to do so under the employer's policies. While the employee made arrangements to provide notice on two occasions, the employee missed many days of work without any notification to the employer. The employee argues that the employer knew as early as August 27 that he was incarcerated; however, the record does not establish that the employer knew when the employee was going to be released from his incarceration. Moreover, two contacts, over such an extended period of time, was insufficient to keep the employer apprised of the employee's situation, especially when the employer was unaware of any release time or projected release time.

While the employee argues he did the best he could do while incarcerated to notify the employer of his extended absence, it was nonetheless insufficient. Furthermore, the employee failed to provide a satisfactory explanation as to why he did not send a letter to the employer when he was unable to directly contact the employer by phone, especially given the length of his incarceration. The commission is therefore satisfied that the employee's failure to maintain better contact with the employer was conduct inconsistent with the continuation of the employment relationship thereby establishing a quit within the meaning of Wis. Stat. § 108.04(7)(a). The employee has not established any exception to the quit disqualification found at Wis. Stat. § 108.04(7)(a) and is therefore ineligible for unemployment insurance benefits.

The employee also argues that his employment separation caused by his incarceration should be treated as an employment separation pursuant to Wis. Stat. § 108.04(1)(b)1. The employee cites Mark Rowe v. Alsum Produce Inc., UI Hearing No. 06000146MD (LIRC March 24, 2006) and other unemployment insurance cases in support of his argument. However these cases are inapplicable to the employee's employment separation. The cited cases concern employees who were prisoners whose jobs under work-release ended solely because of their releases from prison. In those types of employment situations, the commission found employees as prisoners did not voluntarily quit their employment once they were released from prison. This legal analysis is inapplicable here. The employee had not been convicted of a crime and was not working under a work-release program while serving a prison sentence.

Finally, the employee requests that the commission contact his witness before it reaches its determination. The commission however cannot contact this witness because its review is limited solely to the record created at the hearing. The parties were properly apprised that the hearing would be their only opportunity to present testimony, including other witnesses. Furthermore, the employee could have subpoenaed this witness and failed to do so. The employee does not advance any compelling reason for an additional hearing and therefore his request is denied.

cc: Cooper Power Systems, Inc. - Waukesha, WI



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