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

STEVEN K WITWEN, Employee

WOODMANS FOOD MARKET INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 10003688MD


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 more than seven years as a warehouse clerk for the employer, a grocery store. He was discharged in week 22 0f 2010 for an unsatisfactory attendance record.

The issue is whether the actions for which the employee was discharged constitute misconduct connected with his employment.

As of May 22, 2010, the employee had a balance of 2 attendance points.

The employer's attendance policy (exhibit #2) provides for termination upon the accumulation of 7 attendance points.

After May 22, 2010, the employee's attendance record included 4 days of absence due to incarceration, 3 with notice (5/23, 5/24, 5/26), and 1 without (5/25). The employee accumulated 5 attendance points for these absences, bringing his total to 7.

The notice on these days of absence was provided by the employee's ex-wife. In providing this notice, she stated that the employee was sick.

The employee has been on probation since 2000. On May 22, 2010, the employee drank alcohol before driving his car. He was stopped by the police and arrested for driving under the influence. As a result of this arrest, he was placed on a probation hold and jailed. The employee was released from jail on May 26, 2010.

The employee did not ask his ex-wife to call in his absence of May 25 because he had asked a coworker to work his shift that day. The employer requires that, if a schedule substitution is to be made, both workers complete and sign a substitution form. Although the employee completed and signed this form for the May 25 shift, the other worker did not, and a properly completed form was not submitted to the employer for May 25. The employee was aware of this before and during his incarceration.

The employee was aware, as the result of the language of the employer's attendance policy, that he would be terminated if he accumulated 7 attendance points.

Under the legal standard set forth in Boynton Cab Co. v. Neubeck & Ind. Comm., 237 Wis. 249, 296 N.W. 636 (1941), mere proof of absence, however frequent, does not create a presumption of misconduct. In determining whether an employee's absences constitute misconduct, the courts and the commission have held that misconduct will not be found if the absences are for valid reasons and are promptly reported to the employer. See, PPG Industries v. DILHR & Reynolds, Case No. 161-399 (Wis. Cir. Ct. Dane Co., 1979); Ramlow v. Power Dispatcher's Equipment Co. & Ind. Comm., Case No. 107-419 (Wis. Cir. Ct. Dane Co., Mar. 2, 1962). Generally, the commission has held that incarceration is not a valid reason for absence from work when the employee has intentionally engaged in the criminal conduct for which he was incarcerated, or otherwise precipitated the chain of events which led to his incarceration. See, Schweikert v. Ganton Technologies, Ind., UI Hearing No. 91-606281 (LIRC March 24, 1992); Philon v. Guyers Builder Supply, Inc., UI Hearing No. 02603203MW (LIRC Feb. 11, 2003); Brinkman v. J. Stadler Machine, Inc., UI Hearing No. 03401429AP (LIRC Nov. 19, 2003); Lucas v. Vulcan Lead, Inc., UI Hearing No. 03608192MW (LIRC March 17, 2004); Graham v. Emmpak Foods, Inc., UI Hearing No. 04610974MW (LIRC March 15, 2005).

Here, the employee was discharged for having accumulated 7 attendance points after missing work for four consecutive days. It is reasonable to assume that the employee knew that any arrest would result in a probation hold and his immediate incarceration. See, Brinkman, supra. The employee, by drinking alcohol and then driving his car, a decision he characterizes in his response to the petition, as "a devastating life-altering mistake," began the chain of events which resulted in his failure to report to work. The employee did not, therefore, have a valid reason for his four consecutive days of absence, one without notice.

The circumstances here support a conclusion that the employee engaged in misconduct. See, Philon, supra., (misconduct where employee absent without notice for three scheduled shifts due to his incarceration); Simmons v. Klemm Tank Lines, UI Hearing No. 02403991GB (LIRC June 30, 2003)(misconduct where employee absent for four scheduled shifts because arrested and incarcerated for admittedly being the aggressor in physical attack on his fiancee); Brinkman, supra. (reasonable to assume that employee aware that engaging in criminal activity would violate the terms of his probation and result in his immediate incarceration, and resulting four consecutive days of absence misconduct).

The ALJ found that the employee "testified credibly that he did not knowingly violate his probation and had no reason to know that he would be unable to report for work for an extended period" and "those absences resulted from circumstances largely beyond his control."

The employee's actual testimony is that he had no reason to be aware that consuming alcohol would violate the terms of his probation. However, the employee's probation hold did not result from the fact he drank alcohol but instead from the fact that he drank alcohol, drove a car, and was arrested for driving under the influence. He did not testify, nor is it reasonable to conclude from the record, that he had no reason to believe that being arrested for driving under the influence would result in a probation hold, since virtually any contact with law enforcement results in a probation hold.

The commission therefore concludes that the employee was discharged in week 22 of 2010 for misconduct connected with his employment, within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employee was paid benefits in the amount of $7,623 for which he was not eligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03(1),and that the employee is required, pursuant to Wis. Stat. § 108.22(8)(a), to repay this amount 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, within the meaning of Wis. Stat. § 108.04(13)(f), the overpayment was not the result of department error.

The commission further finds that department records do not show that the employer failed to provide correct and complete information requested during the department's investigation of this matter within the meaning of Wis. Stat. § 108.04(13).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 22 of 2010, and until seven weeks have elapsed since the end of the week of discharge and the employee has earned wages in covered employment performed after the week of discharge equaling at least 14 times the employee's weekly benefit rate which would have been paid had the discharge not occurred. The employee is required to repay the sum of $7,623 to the Unemployment Reserve Fund.

This decision also results in an overpayment of Federal Additional Compensation (FAC) benefits. The employee will receive, or may have already received, a separate 'UCB-25 Notice of Federal Additional Compensation Overpayment' regarding any amount of FAC benefits that must be repaid.

The initial Benefit Computation (Form UCB-700), issued on May 28, 2010, is set aside.  If benefit payments become payable based on other employment, a new computation will be issued as to those benefit rights.

Dated and mailed November 12, 2010
witwest . urr : 115 : 1 MC 692.02

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

Ann L. Crump, Commissioner

NOTE: The commission did confer with the administrative law judge before reversing his decision. In this conference, the administrative law judge stated that he had no particular recollections as to the demeanor of the witnesses. The ALJ, in his decision, had stated that he had found credible the employee's testimony that he had not knowingly violated his probation and had no reason to know that he would be unable to report for work for an extended period. However, as discussed above, this was not the employee's actual testimony.

cc: Attorney Betsy Givhan


[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]


uploaded 2011/01/14