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

JOHN ROBINSON JR, Employee

ROCORE INDUSTRIES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 12601441MW


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 for approximately one year for the employer, a thermal products manufacturer. The employee most recently worked for the employer as a welder. The employee worked for the employer on Mondays through Fridays from 6:00 a.m. until 2:30 p.m. The employee's last day of work was October 18, 2011 (week 43). From October 19, through December 13, 2011 (weeks 43 to 51), the employee was incarcerated without work release privilege by his parole agent. On October 26, 2011 (week 44), the employer mailed the employee a letter stating that his employment was terminated.

The first issue to be decided is whether the employee quit or was discharged.

The key element to determining whether an employee voluntarily quit is the employee's intent. An employee can show intent to quit by actions inconsistent with the continuation of the employment relationship. Nottelson v. ILHR Dept., 94 Wis. 2d 106, 119 (1980); Tate v. Industrial Comm., 23 Wis. 2d 1, 6 (1963).

In Strasser v. Convenience Transportation LLC, UI Dec. Hearing No. 09202810EC (LIRC March 29, 2010), the commission stated:

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.

When finding a quit based on incarceration, the commission requires that the employee engage in conduct which he knew could result in his incarceration. See, Emmerich v. Southport Marina Development Company LLC, UI Dec. Hearing No. 10611567RC (LIRC July 22, 2011); Stokes v. Site Temporaries Inc., UI Dec. Hearing No. 01606930MW (LIRC Dec. 14, 2001); Craigg v. Red Lobster & The Olive Garden, UI Dec. Hearing No. 01603522MW (LIRC Aug. 23, 2001).

In this case, the employee testified that he reported the mother of his son to Social Services for not taking care of his son and in retaliation she called his parole officer and made up a story that resulted in his incarceration while the story was investigated. The evidence does not establish that the employee engaged in culpable conduct that resulted in his incarceration. The employee was not acting inconsistently with continuation of the employment relationship. The employer discharged the employee because of his continued absence from work. However, again, absent evidence of culpable behavior on the employee's part, the commission cannot conclude that his discharge was due to intentional conduct in disregard of the employer's interests.

The commission therefore finds that, in week 44 of 2011, the employer discharged the employee but not for misconduct connected with his work for the employer, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is modified as to the week of issue and, as modified, is reversed. Accordingly, the employee is eligible for benefits beginning in week 44 of 2011, if he is otherwise qualified. There is no overpayment as a result of this decision.

Dated and mailed June 29, 2012

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

MEMORANDUM OPINION

The commission did not consult with the ALJ who presided at the hearing regarding her impressions of witness credibility and demeanor. The commission's reversal is not based on credibility but on the lack of evidence to support a finding that the employee was at fault in his incarceration.

robinjo . urr : 132 : 1

 


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