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

GROVER C THOMPSON, Employe

ELKHORN WEBPRESS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 97005913JV

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 employe is ineligible for benefits beginning in week 44 of 1997, and until four weeks have elapsed since the end of the week of quitting and he has earned wages in covered employment performed after the week of quitting equaling at least four times the employe's weekly benefit rate which would have been paid had the quitting not occurred.

Dated and mailed: April 22, 1998
thompgr.usd : 135 : 1 MC 605.091 VL 1001.09

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner

MEMORANDUM OPINION

In his petition for commission review, the employe contends that the ALJ's decision to find a quit "not only goes against the weight of the evidence but also tortures the definition of what it means to voluntarily leave one's job". Generally, the commission treats an employe's absence from work because of incarceration as a discharge for misconduct. The commission and the courts have held that in such cases an employe's absence is not for a valid reason when an employe intentionally engages in criminal activity that leads to an extended absence from work because of incarceration. See Curtis D. Lambert v. Bridgestone / Firestone, Inc., (LIRC 5/20/92) and Brian W. Schweikert v. Ganton Technologies, Inc., (LIRC 3/24/92).

Notwithstanding this, the commission agrees with the ALJ's conclusion that the employe was the moving party in this employment separation. The employe was required to contact the employer with his availability following his October 17 medical appointment. The employe's failure to do so was inconsistent with the continuing employment relationship between the employe and the employer. Furthermore, there were insufficient contacts between the employe and employer during his incarceration and transfer from one county Huber facility to another. The commission therefore believes that the record supports the ALJ's conclusion that the employment relationship had been severed due to the employe's abandonment of his job by his failure to keep in sufficient contact with the employer.

Concluding that the employe quit, the commission also concludes that the employe's quitting was not for any statutory reason permitting the immediate payment of benefits. The actions leading to the employe's incarceration, although off-duty conduct, were avoidable. Furthermore, it was foreseeable that the employe's conduct leading to incarceration could have prevented him from reporting to work in a consistent and timely fashion.

cc: Attorney Robert Howard

Appealed to Circuit Court. Affirmed November 25, 1998. Court decision summary.

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