Wis.LIRC UC Decision: Strasser, David - March 29, 2010 - MC 605.091 - Absence, Arrest-Incarceration - Discharge, following employee's absence due to incarceration where employee notified the employer of his incarceration immediately prior to it and his sister notified the employer of his continued absences, was not for misconduct where record lacks any evidence of culpable conduct on behalf of the employee leading to the probation hold and absences.

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

DAVE R STRASSER, Employee

CONVENIENCE TRANSPORTATION LLC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 09202810EC

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, except that it makes the following modification:

Replace the fourth sentence in the fourth paragraph under the "FINDINGS OF FACT AND CONCLUSIONS OF LAW" with the following:

The employee was given a warning for both his unexcused absenteeism and his dishonesty in originally claiming that he attempted to contact the employer on the 17th to provide notice of his absences.

DECISION

The decision of the administrative law judge, as modified, is affirmed. Accordingly, the employee is eligible for benefits beginning in week 34 of 2009, if otherwise qualified.

Dated and mailed March 29, 2010
strasda : 150 : 5 MC 605.091

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

The petition for commission review in this matter does not specifically challenge any of the procedural and evidentiary rulings made by the administrative law judge, nor does it challenge any specific findings of fact as being unsupported by the record, nor does it specifically assert whether and why any conclusions of law are claimed to be in error. Thus, the commission has no specific indication of why the petitioner believes it should prevail on this record or what it claims was erroneously decided by the administrative law judge. Notwithstanding this, the record in this matter has been reviewed for the purpose of determining whether the findings of fact and conclusions of law made by the administrative law judge are supported.

The hearing record reflects that after being warned, the employee had a second incident of absenteeism due to a probation hold. The employee testified that the probation hold was implemented after his girlfriend "filed a complaint." The employee notified the employer of his incarceration immediately prior to it and, when incarcerated, had his sister notify the employer of his continued absences. The employer's witness conceded receiving calls from the employee's sister and the sister testified that she was directed by the employer to stop calling in on her brother's behalf and the employee was terminated.

In cases where the commission has found misconduct based on incarceration, it was able to affirmatively find that the employee's actions or failures to act caused a chain of events which created circumstances which made him unavailable for work and he was therefore the defaulting actor. Brian W. Schweikert v. Ganton Technologies Inc., UI Dec. Hearing no. 91606281 (LIRC Mar. 24, 1992); Love v. Emmpak Foods Inc, UI Dec. Hearing No. 99604845MW (LIRC Jan. 27, 2000). In Diener-Crawford v. Bestway Transfer & Storage Inc., UI Dec. Hearing No. 06603964MW (LIRC January 31, 2007), the commission found no misconduct for a worker who was absent with improper notice from her mom, the policy did not call for discharge, she had only been charged with a crime and there was no evidence of any culpable conduct leading to the incarceration.

In this case, the administrative law judge attempted to determine whether the employee was at fault in his incarceration on the probation hold. The employee claimed confusion and argued that the court order of monitoring related to a telephone call. Under these circumstances, the record lacks any evidence of culpable conduct on behalf of the employee leading to the probation hold and absences. Thus, the commission affirms the appeal tribunal decision that the employee's discharge was not for misconduct connected with his employment.

Finally, as a note, Wis. Stat. § 108.04(5g) does not apply in this case because the employee was discharged for the excessive amount of shifts he missed, not the failure to give notice.

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