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


THOMAS A VANATTA, Employe

GREAT LAKES CHEESE OF WISCONSIN INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98603993MW


On April 18, 1998, the Department of Workforce Development issued an initial determination which held that the employe quit his employment but not for a reason allowing for immediate eligibility for unemployment insurance. The employe filed a late request for hearing on the adverse determination and, after hearing on that issue, the department issued an appeal tribunal decision on June 12, 1998 which held that the employe's late appeal was so for a reason beyond his control. On July 29, 1998 in Milwaukee, Wisconsin, hearing was held on the merits. On August 27, a department administrative law judge issued an appeal tribunal decision finding that the employe had been discharged for misconduct for unemployment insurance purposes. The employe filed a timely petition for commission review of the adverse appeal tribunal decision and, by November 11, 1998, the commission remanded the matter for additional hearing. That hearing occurred on December 2, 1998 in Milwaukee, Wisconsin. The matter is again before the commission and ready for disposition.

Based upon the applicable law and the records and other evidence in the case, and after consultation with the administrative law judge as to witness credibility, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked approximately a year as a cheese cutter for the employer, a cheese packaging concern. His last day of work was February 7, 1998, at which time he was jailed. The employer discharged the employe effective February 26, 1998 (week 9), and the issue is whether that discharge was for misconduct for unemployment insurance purposes. The commission concludes that it was not, and so reverses the appeal tribunal decision.

Prior to the incident precipitating the discharge, the employe was absent between four and six times and left work early two to five times. The employe's absences were due to bronchial asthma, and the employe left work early on the occasions in question in order to take care of his children.

The employe's absence from work after February 7, 1998 was due to his arrest and subsequent probation hold following a domestic dispute with his fiancee. The circumstances leading to his arrest and revocation of probation are as follows. He telephoned police early in the morning on February 9, because his fiancee was intoxicated and "hollering and screaming." The employe had locked her out of the house, because she was staggering down the driveway. In any event, when the police came they initially cited her for disturbing the peace. The told the employe to sleep downstairs and to let his fiancee go upstairs. When she came in, she tried to get some money and then to leave. When the employe tried to get the money out of her hand, she fell against the bathtub. She then ran out the door with her car keys; the employe was running after her to take the car keys away from her because she was intoxicated. At this point, the police intervened and arrested the employe. This constituted a violation of a term of probation the employe was under, a condition of which was that the employe have no contact with the police.

Misconduct for unemployment insurance purposes is the intentional and substantial disregard by an employe of standards an employer reasonably may expect of its employes. The employe's attendance failures do not meet this standard, however. Certainly absences due to bronchial asthma are not intentional. With regard to the incident precipitating the discharge the record does not indicate that the end result, the employe's arrest and probation revocation, was something the employe reasonably could have predicted. For example, when someone goes to jail after having been arrested and convicted for driving while intoxicated, it is found that that result was a foreseeable consequence of the individual's having engaged in drinking and driving. In the present case, though, the record indicates that the employe was attempting to prevent his fiancee from drinking and driving and that his subsequent arrest was not something he reasonably could have foreseen. For this reason, the incident precipitating the employe's discharge also cannot constitute an intentional disregard by the employe of the employer's expectations for its workers. The commission therefore finds that, in week 9 of 1998, the employe was discharged but not for misconduct connected with his work for the employer, within the meaning of Wis. Stat. § 108.04 (5).

DECISION

The appeal tribunal decision is reversed. Accordingly, the employe is eligible for unemployment insurance, if he is otherwise qualified.

Dated and mailed: February 25, 1999
vanatth.urr : 105 : 3   MC 605.091

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

NOTE: The commission conferred with the administrative law judge before determining to reverse the appeal tribunal decision in this matter. The administrative law judge found credible the employe's testimony. The dissent argues that the employe's testimony at the second hearing was self-serving. This is simply a mis-statement of the matter. The commission listened to a hearing tape of the employe's testimony. It was straightforward and highly believable. And, as indicated above, the administrative law judge found the employe's testimony credible. The evidence from the first hearing, and which the administrative law judge used to base his decision of misconduct, did not include much detail as to the circumstances of the employe's final attendance failure. It was for this reason that the commission remanded the matter for further hearing. The evidence from that hearing establishes that the employe's last attendance failure was not an intentional disregard by the employe of his attendance obligations to the employer.

PAMELA I. ANDERSON, COMMISSIONER (Dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. I disagree the majority on whether the last incident which caused his discharge was blameworthy. At the first hearing the employe testified "I was on probation for a domestic dispute because of my alcoholism. I was incarcerated until 5/17, when I was released." He also said "I was on probation in February for an unlawful entry charge. It had to do with my girlfriend and a basket of clothes I had over at her house. I lived there the week before. The door was open but she did not give me permission to come in. I was forbidden to have contact with her on the court date, I took a plea bargain that they would not charge me for disturbing the peace if I plead guilty to the unlawful entry. I pled no contest to the unlawful entry. That's how I ended up on probation. It occurred at the end 11/97 in November or December. My probation was for one year."

"As a condition of my probation, I was supposed to have no contact with my girlfriend. I had no contact with her after February. The 2nd charge in the dispute is over my fiancee who is my wife that I have now. These are 2 different women." "Right, I was incarcerated for violating my probation. In regard to what terms I violated, having no police contact whatsoever. I had police contact on 2/8, when the police came over to my house because me and my fiancee got into a domestic dispute. They took me to jail....In regard to whether I understood that was going to be the result if I got into a dispute with a fiancee, that was not totally my fault. I blame that on her and my alcoholism. I am responsible for my own actions, but under the influence like I was the police ended up coming to my house."

At the second hearing the employe gives a better story in which he does not mention his alcoholism as part of the cause and now he called the police. He mentions he locked her out of the house in February at 1:00 a.m. He said she was hollering and screaming and he called the police. He continued "They cited her initially for disturbing the peace. I was not arrested on the first occasion. Then they left and when she came in she was upset. I heard her go into the bathroom and attempt to get money out of a container. I tried to get the money out of her hand and she fell and hit the bathtub. She grabbed the keys to her car and ran out the door. I ran behind her to get the keys because I knew she was intoxicated. She then ran down the street to stop the police. I returned to the house and the police returned with her and they handcuffed me and said I was under arrest for domestic violence and battery."

At the very least the employe had been drinking in the first version of his story and he was partly to blame for the police arresting him. He admitted it was a dispute with his fiancee and he ought to have known from his previous experience what could happen to him. I believe the consequences were foreseeable. The employe's second version is more self serving. At neither hearing did his new wife appear to back up his story.

Because I believe that the last incident was blameworthy and the consequences were foreseeable, I would affirm the administrative law judge's finding of misconduct connected to his employment.

Pamela I. Anderson, Commissioner


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